Speaking to students of the University of Alabama law school, Chief Justice John Roberts launched a blistering attack on President Obama's State of the Union criticism of the Court's Citizens United decision. Calling Obama's prime-time critique "very troubling," Roberts complained that the President's annual address to Congress "degenerated to a political pep rally." Of course, when Robert's political godfather Ronald Reagan or his sponsor George W. Bush used the State of the Union to berate, badger and batter the Supreme Court, that was just fine with the Chief Justice.
"I'm not sure why we're there," Roberts told the audience in Tuscaloosa, adding:
"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."
But during the George W. Bush's tenure, the Justices served as a prop for his State of the Union battles with the judiciary.
Bush's Supreme politicking during his State of the Union speeches was a regular fixture of his presidency. For three straight years (2004, 2005 and 2006), President Bush denounced "activist judges" and insisted "for the good of families, children and society, I support a constitutional amendment to protect the institution of marriage." On the very day Samuel Alito joined the Robert Court, Bush used his 2006 SOTU for a victory lap:
"The Supreme Court now has two superb new members -- new members on its bench: Chief Justice John Roberts and Justice Sam Alito. I thank the Senate for confirming both of them. I will continue to nominate men and women who understand that judges must be servants of the law and not legislate from the bench."
And throughout the presidency of Ronald Reagan, for whom John Roberts promoted the gutting of the Civil Rights Act, overturning Roe v. Wade and a dangerously ignorant policy in response to the AIDS crisis, bashing the Supreme Court was a routine occurrence.
In 1983, President Reagan penned a screed in Human Life Review, echoing Justice Byron White's declaration that the Court's ruling in Roe was an exercise of "raw judicial power." Reagan wrote:
"Make no mistake, abortion-on-demand is not a right granted by the Constitution. No serious scholar, including one disposed to agree with the court's result, has argued that the framers of the Constitution intended to create such a right. ... Nowhere do the plain words of the Constitution even hint at a 'right' so sweeping as to permit abortion up to the time the child is ready to be born."
And as radio host Michael Smerconish noted, Reagan didn't hesitate to get in the Justices faces during his State of the Union speeches:
Among Reagan's State of the Union addresses, on four occasions he did what Obama attempted to do: urge Congress to address a Supreme Court decision with which he disagreed. but in the Gipper's case, he avoided any direct reference to the Supreme Court decision.
The issue of abortion, he acknowledged in 1984, was "very controversial." He asked: "But unless and until it can be proven that an unborn child is not a living human being, can we justify assuming without proof that it isn't?"
One can only speculate whether Justice Harry Blackmun, a Nixon nominee and author of the majority opinion in Roe, wondered out loud, "I'm not sure why we're there."
When John Roberts first assumed the mantle of Chief Justice in 2005, George Washington University law professor, New Republic regular and author of the PBS series and book "The Supreme Court" Jeffrey Rosen lauded Roberts as the second coming of the legendary John Marshall:
"Whenever the Court gets dramatically out of step with the public, and issues intensely controversial, narrowly divided opinions, all of that carefully hoarded legitimacy can go out the window. That's why I'm persuaded by Roberts' argument that resurrecting Marshall's vision is all the more important in a polarized age."
But by 2007, Rosen expressed buyer's remorse over the radical and divisive Roberts, echoing Senator Chuck Schumer (D-NY) lament that his Democratic colleagues were "too easily impressed with the charm of Roberts" and concluded, "There is no doubt that we were hoodwinked." By July, Rosen aired his disappointment in a piece titled, "Will Roberts Ever Get Better?"
"Although Chief Justice John Roberts began the term by calling for greater consensus, a third of cases were decided by five-to-four votes, the highest percentage in more than ten years. The polarization inspired the four liberal justices to write some of their most passionate, incisive, and memorable dissents."
In the wake of the Court's decision in Citizens United v. FEC, Rosen seemed to finally come to grips with John Roberts radical conservatism and naked partisanship:
While Roberts talked persuasively about conciliation, it now appears that he is unwilling to cede an inch to liberals in the most polarizing cases. If Roberts continues this approach, the Supreme Court may find itself on a collision course with the Obama administration--precipitating the first full-throttle confrontation between an economically progressive president and a narrow majority of conservative judicial activists since the New Deal...
Political backlashes are hard to predict, contested constitutional visions can't be successfully imposed by 5-4 majorities, and challenging the president and Congress on matters they care intensely about is a dangerous game. We've seen well-intentioned but unrestrained chief justices overplay their hands in the past--and it always ends badly for the Court.
And in case of John Roberts, for the people of the United States.
(This piece also appears at Perrspectives.)