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Wednesday, March 10, 2010

Roberts on the SOTU (that Sonofagun Obama Troubles Us)

I was at Chief Justice Roberts' Albritton Lecture yesterday at my school, the University of Alabama.  (Well, I was in an overflow room.  Same difference.)  As the media has reported, Roberts had some tough words about the Justices' attendance at the State of the Union address, where Obama criticized the Court for its decision in CItizens United.  He said he had no problem with a public official voicing criticism of the decisions of the Court.  But "[t]o the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there," he added. 

I am partly sympathetic to Roberts' conclusion.  Not so much his argument: the political branches (and, as Judge Posner recently pointed out, the Court loves to refer to the other branches as "political" while implying they are utterly above the fray) are, well, political, and while I think the SOTU is more spectacle than substance, I am not shocked by politicians making political communications, including communications criticizing the Court.  I think the theater of members conspicuously rising to applaud, or conspicuously sitting on their hands, is ridiculous.  But I think that about a lot of things.  Complaints about the degeneracy of the current age are frequent in life and politics, generally accompanied by comparisons to the giants of a bygone age.  But there were midgets in that age too, and certainly politics has always been a rough-and-tumble game in this country.

On the other hand, I am not sure why the Court is there either.  Yes, I get the general idea of showing the colors.  And I am not much worried about the "unfairness" of the Court having to sit still while it is lambasted; life tenure seems like a pretty good salve for that wound.  But I think the Court need not and probably should not attend.  It does them little good and some ill.  Why not stay on First Street?  I would, on the other hand, like to see a revival (is it a revival?  I believe the practice has faded, but I'm not sure) of an annual private dinner for the Court at the White House.  The fact that the branches are, by design, in conflict with one another doesn't mean there is no value in their meeting and sitting down as equals and partners.  That, I think, is a far cry from showing up for what only Washingtonians could think of as the hottest ticket in town -- a long and fairly uninformative speech attended by local celebrities.

One last observation.  What is missing from this story is a sense of the overall tenor of Roberts' remarks, both at the Q and A and at the lunch with faculty members.  I won't share his remarks there, although I don't believe I'm restricted from doing so.  But my sense was that both with his SOTU remark and with some other things he had to say about, for instance, judicial salaries, Roberts was acting specifically as Chief Justice of the United States -- as head of the Judicial Branch.  He was sending a shot across the bow in favor of the interests and prerogatives of the institution in a fairly direct way.  It was all very reminiscent to me of Federalist No. 51; his ambitions were clearly tied to his institution, whose interests he seemed to have internalized as a matter of personal pride.  Madison would have been proud to see the design working as intended in this instance.  

Posted by Paul Horwitz on March 10, 2010 at 11:25 AM in Paul Horwitz | Permalink

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