Our Overly Sensitive Supreme Court

In his State of the Union address last January, President Obama said, "With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities." Whatever one thinks of these criticisms, the important thing is that Obama delivered them while looking directly down at six of the justices, dressed in their black robes.

Immediately the cameras caught Justice Samuel Alito shaking his head as if at a bad call at a Phillies game, and petulantly mouthing, "That's not true." Later, Chief Justice Roberts, speaking at the University of Alabama, said that the justices might just stay home next year. "The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court -- according the requirements of protocol -- has to sit there expressionless, I think is very troubling," he said.

Let's count the rookie mistakes here. Obama was giving his first State of the Union, and perhaps was not aware that (as Tony Mauro of Legal Times pointed out) presidents usually don't use the State of the Union setting to pursue their quarrels with the court. As my Southern grandmother used to say, it's rude to make a guest feel unwelcome, and what Obama said surely did that.

But it's also unseemly for an associate justice to gape and fleer during a president's speech. Good lawyers can listen to attacks on their case without turning a hair; certainly Alito would despise any advocate before the court who pulled faces when when a justice spoke in court.
Finally, if Roberts did find Obama's remarks troubling, his proper option would be not to go next year. (Justice John Paul Stevens long ago stopped going to the State of the Union.) But to fire back at the president is churlish.

Roberts in particular is in no position to teach Obama manners. He was the first to show inter-branch disrespect, and he might have modeled his response to Obama on Obama's response to him. Roberts's disrespect was no doubt inadvertent, but it was still serious. Given a simple duty to perform at the 2009 inauguration, the chief could not be bothered to learn his single line. As a result, Obama had to endure a botched oath and a day's worth of speculation by the kibitzers at Fox News that he wasn't "really" president.

But note the White House response. Roberts was invited to administer to oath again, in a low-key environment. At no time did Obama criticize Roberts for his gaffe, and when Vice President Biden sought to make a joke about it, Obama made clear his displeasure. It was in a subtle way a defining moment for both Obama and Roberts. When the chief later thought himself affronted, he might have done well to emulate the man he had himself offended first.

Presidents must tread lightly when picking quarrels with the court. But justices should tread lightly too. Their lives are swaddled in deference and flattery and (as Justice Scalia's off-bench behavior suggests) they may come to think themselves above criticism. But one basic rule of democracy, it seems to me, is that powerful people need to learn to listen to criticism.

If even lawyers can learn to sit there and take it, how hard can it be?

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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