The Court as a Political Actor

When Obama criticized the Supreme Court’s holding in Citizens United, and the Supreme Court per Alito audibly responded, conservatives and liberals alike reacted with horror, albeit to different parts of the story. For we liberals, it’s terrible and a breach of decorum for Alito to talk back to the President; for conservatives, it’s terrible that Obama lit into the Court in the first place.

We’re both wrong. Well, we, liberals are actually right, but our simple case doesn’t present the whole story. Alito’s outburst was a breach of decorum, sure, but one he was privileged to make if we were wrong in the first place. So let’s get to that question.

Chief Justice Roberts, again speaking yesterday, regards it as impolitic for Obama to even address the Court in his speech. That surely overstates the case.  It would be wrong for Obama to attack individual Justices, or at least tacky, but the Supreme Court is a coordinate and equal branch of government, with a significant but not absolute role in the making of substantive law. The President can properly build an agenda, and Congress can properly legislate, to abrogate Supreme Court decisions or limit their effects. The Court is not a proxy for the Constitution; as the years since Roe should have proved, a constitutional holding is the beginning, not the end, of a dialogue about the document’s meaning. Presidents are entitled to input on that question, especially when that input is phrased not as an attack on the Court’s legal reasoning, but as clear concern for the holding’s effects. This, in fact, is exactly the path Obama charted:

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. (Applause.) I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. (Applause.) They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.

Roberts’ counterargument must rest on the theory that the Supreme Court is an utterly neutral body, immune and oblivious to politics, and simply engaged in a dialectic on the Platonic meaning of The Constitution, of which they are the sole arbiters.

This is a polite fiction that we occasionally tolerate, but in which we’ve never truly believed. Since the birth of the strong Supreme Court, it has been a political body. Marbury v. Madison emerged from an acknowledged political staredown between the Court and newly-elected President Jefferson, and it was the Court, not Jefferson, that performed Kruschev’s miracle: it blinked, while appearing not to. Since then, men we call heroes have taken it upon themselves to question the Court, and wound up on the right side of history for it. Lincoln campaigned against Scott v. Sanford and secured its reversal by war; Roosevelt came the closest to true impropriety by threatening the Court not with legislative reversal, but with irrelevance through dilution.

And, lest we forget, the modern conservative movement was built on attacking judicial power. Virulently. First for Brown, then for Roe (see, e.g., right), then for the principle of their existence (“activist judges!”). Conservatives can’t — or shouldn’t be allowed to — have it both ways, raising the Court’s mystique and grandeur as a defense only when it suits them.

Roberts is right to the extent that it’s better for our political culture if politicians do treat the Court’s reasoning as inviolate, even as they freely question their policy. After all, policy is not their core competency. But that’s not a commandment Obama broke, especially considering the profound policy implications, and blatant policy motivations, behind the Roberts Court’s entire campaign finance jurisprudence.* If Roberts is troubled by controversy, well, to paraphrase his most famous dicta to date, the easiest way to avoid being criticized for questionable decisions is to stop issuing questionable decisions.

* = As a favorite professor of mine says, there are two ways to read FEC v. Wisconsin Right to Life — either Roberts knows something we don’t, and doesn’t say it, or he’s making things up.


  1. Obama didn’t say “the court is stupid and wrong” even if someone wants to take it that way. Obama did say, “not that the court should have done something else, but I fear for the effects of their decision. So congress, close the holes in the court’s decision with legislation, as that is your role not the court’s.”

    His substance addressed congress!

    And what was Alito even arguing? If he’d mouthed “unfair” I could understand – feeling that it was not the time and place to address the decision, Roberts’ main argument. But no. Alito thinks something Obama said was that so factually incorrect as to disgust him? Does he not think that the decision overturned more than just recent campaign finance laws? Or does he dispute that the decision made no regard to a corporation’s effective nationality? Maybe he just meant that it’s “not true” that we should be worried about the decision.

  2. Ah, Alito was right in one sense — the precedent he overruled wasn’t exactly 100 years old. It was 40-ish years old, even if it overturned standard practice for the 60 years before that.

    1. Yeah, really doesn’t warrant his visceral reaction. If that minor quibble bothers him so much, I can imagine how he listens to a typical Republican speak without vomiting and blacking out.

  3. The real issu eis that the Republicans, slowly over several Administrations, have managed to apck the Supreme Court with activism minded Justices, all the while preaching baou tthe “horrors” of judicial activism – by which they mean any decision that goes against their principles. And we the people, and ur media, have let them do this without so much as a “by your leave.” We deserve what we get.

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