Gavel Grab

Criticizing the High Court: What Is the Line?


In the end, what did this winter’s Obama-Alito confrontation amount to? When a hot Supreme Court case comes along, intertwined with high-stakes politics, interbranch tempers have a way of boiling over. And testiness between courts and the elected branches is part of Beltway life. But the State of the Union spat sucked Washington into one of its favorite games—the kind where no one really wins.

The recent round of acrimony was kicked off January 21, when the Court decided Citizens United, overturning long-standing precedent permitting states and Congress to bar direct spending from corporate and union treasuries into campaigns. For each side, the case raised deep and fundamental constitutional issues.

In such cases, the losing side must struggle to choose the right way to vent its disagreement. Reactions to controversial court decisions are of particular interest to Justice at Stake, which works to protect state and federal courts from partisan threats.

Seen through this lens, much of what followed the Court’s decision soon devolved into another round of political hardball.

For the media, the 5-4 tally was a signal to interpret the decision as another battle in a political war between conservatives and liberals. Indeed, the first round of public debate played out in the Supreme Court’s chambers, as Justices Kennedy and Stevens read at length from their acrimonious opinions. Then came a big round of jeers and cheers over the substance of the ruling and its implications (which Justice at Stake joined)—pretty normal stuff in a democratic society. Soon the case became headline news, the kind of controversy that can be enormously educational.

But a separate, more aggressive strand of criticism developed, aimed at the legitimacy of the court. MSNBC host Keith Olbermann said the case “might actually have more dire implications than Dred Scott v. Sandford…..This is a Supreme Court-sanctioned murder of what little actual democracy is left in this democracy.” Maryland Congressman Chris Van Hollen called it “an un-American decision.” By the night of this year’s State of the Union address, the Court was facing the biggest surge of political catcalls since Bush v. Gore.

Making his way down the aisle, President Obama shook hands and greeted the six justices who had come to represent the judiciary. From the podium, the President was tougher: “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.” Justice Alito was captured on camera shaking his head, apparently mouthing the words “not true, not true.”

The media smelled a fistfight. Had President Obama crossed a line? Writing in the Wall Street Journal, Georgetown University law professor Randy Barnett said the president’s remarks showed “a truly shocking lack of decorum and disrespect toward the Supreme Court for which an apology is in order.”

From a political and historical standpoint, the president’s language was hardly unprecedented. In the past century, presidents have used the State of the Union to take the Court to task over over child-labor laws, school prayer, economic regulation, and flag-burning. Six years ago, President George W. Bush stood at the same podium as President Obama and said, “A strong America must also value the institution of marriage.… Activist judges, however, have begun redefining marriage by court order, without regard for the will of the people and their elected representatives.”

Political leaders routinely heckle the courts in press releases and stump speeches. Americans expect leaders to state their disagreements with court rulings and how they want to respond. Courts may get the last word in a case, but in a democracy the decision of a court faces the same scrutiny as any other public action.

So where does the line get drawn? How much is too much? Justice Sandra Day O’Connor’s formulation is a useful guide: “Criticism is okay. Threats and intimidation are not.”

In applying such a test, context is critical. When a written statement issued by President Obama within hours of the ruling, it’s language drew no such criticism—even though it actually used tougher language than in his speech.

But with Congress and the court sitting a few yards away, President Obama’s words took on extra force, his careful caveats drowned out by the sound of the political head slap. (Indeed, Justice Thomas has stopped attending State of the Union addresses, saying that they have “become so partisan and it’s very uncomfortable for a judge to sit there.”)

Presidents are given a bully pulpit, but they must measure the potential effects of their words on the institutional standing of the courts. The risk of using the State of the Union to showcase complaints about the courts is not just that it weakens what’s left of democratic decorum.

The ultimate fear is that red-meat rhetoric can soften the legitimacy of the judiciary, by egging on political supporters at the expense of respect for the role of courts in our system of checks and balances. Even the most frustrated president knows that America’s freedoms have been strengthened by the reservoir of legitimacy that our courts need in order to uphold the rule of law.

Just a few years ago, the drumbeat against “activist judges” helped produce a Congressional rush to tamper with the family litigation around the Terri Schiavo tragedy. Judges were being compared to terrorists.

In the wake of President Obama’s state of the union address, the outpouring of anger at the court has included calls for impeachment of justices over the Citizens United decision.

In a democracy, the work of the courts ought to be argued about by every citizen. And politics will always have a bare-knuckle element. But politics can unleash forces that go too far. Whenever criticism morphs into a broad attack on the courts themselves, and their role, liberty loses.

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