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A Spineless Chief Justice: John Roberts and the Denigration of American Democracy

05/11/2010 05:12 am ET | Updated May 25, 2011

If Chief Justice John Roberts can't take it, he should resign.

Roberts found it "very troubling" that President Obama would criticize the Supreme Court -- or, more specifically, a single ruling of the Supreme Court, and an awful one at that -- in his State of the Union address?

Last time I checked, the checks and balances outlined in the Constitution, along with the separation of powers of the three branches of government, do not insulate the Supreme Court from criticism. The State of the Union wasn't "denigrated," as Roberts put it, and Obama didn't turn it into "a political pep rally." Of course, there was partisanship on both sides, but that's just the way Congress is. And no one forced Roberts to attend.

Now, I realize that the judiciary should be detached from such partisanship, and that perhaps the justices felt somewhat uncomfortable, and I certainly do not wish them to be partisan cheerleaders, and I do not want all of their rulings to be subjected to the partisan cauldron, but what is wrong with the president taking a position on a Supreme Court ruling and expressing that position in front of the justices themselves? Are they somehow so supreme that they mustn't be challenged to their faces?

And, indeed, what is troubling is not what Obama did but how the Supreme Court ruled. Robert Gibbs:

What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections, drowning out the voices of average Americans. The President has long been committed to reducing the undue influence of special interests and their lobbyists over government. That is why he spoke out to condemn the decision and is working with Congress on a legislative response.

The Supreme Court had its say. The people's representatives, including the top one, have every right to respond. Glenn Greenwald:

It's not actually a unique event of oppression or suffering to have to sit and listen to a speech where someone criticizes you and you can't respond that very moment (but are able, as Roberts just proved, to respond freely afterward). Even in the State of the Union Address, it's completely customary for the President to criticize the Congress or the opposition party right to their faces, while members of his party stand and cheer vocally, and -- as the reaction to Joe Wilson's outburst demonstrated -- "decorum" dictates that the targets of the criticism sit silently and not respond until later, once the speech is done. That's how speeches work. Only Supreme Court Justices would depict their being subjected to such a mundane process as an act of grave unfairness (and, of course, Roberts' comrade, Sam Alito, could not even bring himself to abide by that decorum).

What makes Roberts' petty, self-absorbed grievance all the more striking is that this is what judges do all the time. It's the essence of the judicial branch. Federal judges are basically absolute tyrants who rule over their courtroom and those in it with virtually no restraints. They can and do scold, criticize, berate, mock, humiliate and threaten anyone who appears before their little fiefdoms -- parties, defendants, lawyers, witnesses, audience members -- and not merely "decorum," but the force of law (in the form of contempt citations or other penalties), compels the target to sit silently and not respond. In fact, lawyers can be, and have been, punished just for publicly criticizing a judge.

*****

Supreme Court Justices, in particular, have awesome, unrestrained power. They are guaranteed life tenure, have no authorities who can sanction them except under the most extreme circumstances, and, with the mere sweep of a pen, can radically alter the lives of huge numbers of people or even transform our political system (as five of them, including Roberts, just did, to some degree, in Citizens United). The very idea that it's terribly wrong, uncouth, and "very troubling" for the President to criticize one of their most significant judicial decisions in a speech while in their majestic presence -- not threaten them, or have them arrested, or incite violence against them, but disagree with their conclusions and call for Congressional remedies (as Art. II, Sec. 3 of the Constitution requires) -- approaches pathological levels of vanity and entitlement.

Brilliantly put.

Roberts should be strong enough to take some of his own medicine, and should grow a spine. But he should also start respecting the constitutional and political system of which he is an integral part, a system that prescribes and protects the independence of the judiciary but that does not put it on a platform above the democratically elected, shielded from any and all direct criticism.

That's just the American way, whether he likes it or not.

(Cross-posted from The Reaction.)