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Obama v. Roberts: A Pseudo Event

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The Eric Massa story predictably and mercifully has gone. Even Glenn Beck and Rush Limbaugh understood when Massa's auditions were over, and they cut him loose. But our intrepid media folks always are on the hunt for something "new," something "hot" to fill their space.

Recently, the ABC evening news offered us the ultimately silly and misplaced story of Chief Justice John Roberts' remarks about President Barack Obama's criticism of his Court's recent ruling, which ruled that corporate campaign contributions fell under "free speech," and could not be regulated. Once again, historical memory is sacrificed to the interests of a "good story"; we have what historian Daniel Boorstin described as a "pseudo-event."

The news reports emphasized that the President and the Chief Justice had become embroiled in a unprecedented public spat. Shocking; just shocking.

Andrew Jackson once famously said, "John Marshall has made his decision, now let him enforce it." The Republic did not fall. After the Supreme Court struck down the National Industrial Recovery Act in 1935, President Franklin D. Roosevelt shot back, "We have been relegated to the horse-and-buggy definition of interstate commerce." At the time, the President did not see the blessing in disguise, probably believing that the Court's narrow definition of interstate commerce threatened other New Deal measures. Fortunately, the Court soon reversed itself.

In his 1937 State of the Union address, FDR was less colloquial, but even more pointed. The judiciary, he said, must not threaten "the process of our democracy . . . by the denial of essential powers of free government."

Eighty years earlier, Chief Justice Roger Taney delivered his Court's Dred Scott ruling that neither free nor slave blacks could be citizens of the United States. In his senatorial campaign the next year, Abraham Lincoln attacked the decision, and promised that his party would reverse it.

Lincoln kept his word. In his 1861 inaugural address, he resumed and sharpened his criticism, saying that the decision meant that the "policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by the decisions of the Supreme Court of the United States." If the nation were to be forever bound by such decisions as Dred Scott, then he warned," the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."

In July 1862, Congress fulfilled Lincoln's campaign pledge and specifically repudiated Dred Scott, when it provided that the territories of the United States would be forever free of slavery. The Supreme Court is not always final, as Lincoln well knew.

Barack Obama expressed the same respect as Lincoln did for the judiciary, yet Obama then pointedly criticized the Court's decision striking down limits on corporate campaign contributions. Chief Justice Roberts responded carefully, and largely confined himself to criticizing the theatrical setting for the State of the Union message. "The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court . . . ," he said, "has to sit there expressionless, I think is very troubling."

Roberts has a point. But it has been largely neglected by a media all-too complicit in heightening expectations for the talk, and for providing a televised setting, filled with pre- and post-game comments, almost as if to make the speech itself old news. That was not the story the media wanted.

President Obama could easily accommodate Roberts's complaint, and simply restore the presidential practice from 1801 to 1913, and dispatch his speech for a reading by the Clerk of the House. C-Span no doubt will oblige with coverage for the obsessive political junkies. Meanwhile, Congress can spare itself the exercise of constant rising or by adopting Zen-like postures of silence, with folded arms. The Speaker can abandon her tryouts for cheerleader. It is spectacle, with precious little substance. Meanwhile, the Chief Justice simply can go to a movie; surely he knows "protocol," as he called it, is not law.

The State of the Union moment is political theater, no matter who is President. But hardly anything can top George W. Bush's White House booking office when it provided an honored place for Ahmed Chalabi, purveyor of a plethora of false "intelligence" about Sadaam Hussein and WMDs. Bush might not have had his war without Chalabi's worthless, yet vital, information.

More important, Senator Harry Reid (D-NV) responded to Roberts's comment and suggested that we need more Justices with political experience as opposed to those whose legal careers have centered in the world of appellate courts. Somehow the idea has been planted over the past forty years that Supreme Court nominees must have prior judicial experience. Are we thinking Clarence Thomas's nine months, which only incubated some silly notions of constitutionalism?

Reid might start by urging his President, who after all taught some constitutional law (and history?), to appoint judges in the tradition of Earl Warren, Hugo Black, Louis Brandeis, to name only a few of our great judges without previous judicial experience. Oh yes, can we top the list with our first great Chief Justice, John Marshall?

Stanley Kutler is the author of The Wars of Watergate, and other writings.