Criticism of President by Justice Is as Rare as Criticism of Court During SOTU

BY Quinn Bowman  March 11, 2010 at 12:05 PM EDT


Supreme Court Chief Justice John Roberts made headlines Tuesday when he said at the University of Alabama that President Obama’s criticism of the Court’s decision on a landmark campaign finance case during January’s State of the Union speech was “very troubling.”

“With all due deference to the separation of powers, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections,” Obama said to cheers from the House chamber, while the Court justices sat in silence.

Associate Justice Samuel Alito was seen shaking his head and mouthing the words “not true” during the speech.

We asked Marcia Coyle, a frequent NewsHour commentator and chief Washington correspondent for the National Law Journal, for some context and perspective on this back-and-forth between President Obama and the Supreme Court.

When was the last time a sitting chief Supreme Court justice criticized the president? Is this rare?

MARCIA COYLE: Public criticism of a president by a chief justice is rare as is criticism of the Supreme Court by a president during the State of the Union address.

Presidents and chief justices have clashed many times historically, but the primary vehicle for a chief justice’s criticism has been a court opinion. For example, Chief Justice Roger Taney fought with President Lincoln over a number of issues, such as the suspension of the right of habeas corpus in 1861 and Lincoln’s authority to order the seizure of Southern ships. One scholar has said Taney, if he had had the chance, would have declared the Emancipation Proclamation unconstitutional. We generally only know of how past chief justices felt about presidents through their private papers and correspondence, long after they have died.

Presidents, however, are not always so retrained. Richard Nixon campaigned against the Warren Court, and we all known how Franklin Roosevelt felt about the Supreme Court as it frustrated his New Deal legislation. For the most part, however, presidents and chief justices have been restrained in their public criticisms of each other. Presidents tend to criticize the court as a body, not a particular member.

In his comments in Alabama, Chief Justice Roberts made it clear that he had no problem with criticism of the court. Indeed, members of Congress have been very public in their criticism of certain decisions and individual justices over time. Presidents too have criticized decisions, but almost always add that the court has ruled, and government will follow the decision. Roberts said he found “troubling” the use of the State of the Union address for such criticism. Justices who attend are a captive audience in that situation and are expected to show neither favor nor disfavor towards what is being said.

Presidents have mentioned the Supreme Court by name only nine times in State of Union addresses since Woodrow Wilson’s speech in 1913, according to a search, and few of those mentions would be considered criticisms.

Members of Congress and the president trade complaints with each other regularly. Why is it a big deal when the judiciary is involved?

MARCIA COYLE: What makes it a “big deal” when the judiciary is the target of criticism by public officials, particularly by the president, is the concern that respect for the Supreme Court as an institution could be eroded. The court has no army, no power of the purse in order to ensure that its rulings are followed. It only has the nation’s respect for the rule of law and the institution of the Supreme Court, even when a majority of the nation disagrees with it on a particular issues.

Do you see this conflict between the two heads of different branches of the federal government as a serious problem? Does it damage the court’s ability to appear as a neutral arbiter?

MARCIA COYLE: I don’t see this conflict as a serious problem, and I don’t see it really as a “conflict.” The branches are equal and separate, and so they are naturally and often in disagreement, particularly when the leadership of each may have different political leanings or priorities. If the criticisms were to escalate, it could be damaging, but I don’t believe this will escalate between the two leaders. Chief Justice Roberts made it clear as well that he expects criticism of the court by anyone. He simply disagreed with the forum used. I’m not sure how many people consider the court a “neutral arbiter,” but I am sure, even after Bush v. Gore and the strong feelings that engendered, that many people do respect the institution of the Supreme Court and its role in our system of government. It should be clear to all that the conservative majority on this Supreme Court and this Democratic president and Congress will disagree at times on how certain laws should be interpreted.

Is there a clear opinion from the legal community on whether it was appropriate for President Obama to criticize a court decision in front of the justices?

MARCIA COYLE: There is no clear consensus about the appropriateness of President Obama’s comments during the State of the Union address. And there is just as much disagreement on the appropriateness of justices attending the event. The Constitution says that the president, from time to time, shall report to Congress on the state of the union. Chief Justice Roberts in his comments indicated it now may be more appropriate to stay home. Justice John Paul Stevens has always felt that it was not an occasion for the Court to be present.

Does the fact that Justice Alito, and now Justice Roberts, have publicly shown displeasure with President Obama’s criticism of the Citizens United case give an indication that there is a deep resentment of the president’s actions within the conservative wing of the court? Is there any way to tell?

MARCIA COYLE: There is no way to tell how the justices on the conservative side of the Court–who were in the majority in Citizens United–feel about the President’s comments. Remember, Chief Justice Roberts’ comments in Alabama were not about the substance of the president’s remarks, only the use of the State of the Union in which to make them. Justice Samuel Alito that night visibly disagreed with the president’s interpretation of the decision. It’s unlikely the justices harbor “deep resentment.” They know their rulings can trigger strong emotions. They have been judges for many years. Throughout our history, the court has been buffeted by much stronger winds, and, with the exception perhaps of the “switch in time that saved nine” in the face of the Roosevelt court-packing threat, it goes on with its business, aware of criticism but relatively unaffected by it. A lifetime appointment brings lot of personal security.