In John Roberts, Obama Finds Perfect Foil

(The New Republic)  Jeffrey Rosen is the legal editor of The New Republic.

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Barack Obama is gunning for a confrontation with the Supreme Court, and Chief Justice John Roberts has signaled that he welcomes the fight. Last week, the chief justice described the president's State of the Union condemnation of the Citizens United decision as "very troubling" and complained that the speech had "degenerated to a political pep rally." Roberts was making an argument about etiquette--dissent was fine, he said, but Obama had somehow transgressed the boundaries of civilized discourse by delivering his attack to a captive audience. But he was implicitly making a political argument as well. That is, Roberts seems to have joined the battle with Obama because he thinks the Court can win it.

As a matter of history, this argument is wrong: In battles between a popular president and an anti-majoritarian Court, it's almost always the president who prevails. Using the Court as a punching bag puts Obama in the company of his greatest predecessors, Jefferson, Lincoln, and both Roosevelts--all of whom bashed the Court for thwarting the will of the people. As long as he plays his cards carefully, Obama has much to gain from challenging John Roberts, and the Roberts Court much to lose.

The successful history of presidential Court-bashing shows how fragile the justices are in the face of presidential attacks supported by a mobilized majority of the country. Thomas Jefferson attacked his distant cousin and arch-rival, Chief Justice John Marshall, for his "twistifications" and suggested he couldn't be trusted; he encouraged Jeffersonian Republicans to intimidate Federalist judges by impeaching Justice Samuel Chase. Marshall reciprocated Jefferson's disdain, calling him "the great Lama of the Mountain." But Marshall was so spooked by the Chase impeachment that he anxiously suggested in a letter to Chase that Congress should be allowed to reverse Supreme Court decisions it considered "unsound." And he fell over himself to accommodate Chase's accusers when called to testify at the impeachment. Marshall had diffused the crisis, and Chase was acquitted. There was, however, no doubt that Jefferson had accomplished his mission: Marshall acknowledged that he never fought battles that he knew he couldn't win.

Likewise, Abraham Lincoln vaulted from the House to the presidency by bashing the Dred Scott decision. "[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court the instant they are made … the people will have ceased to be their own rulers," Lincoln declared in his first inaugural address, as an agitated Chief Justice Roger Taney looked on, trembling with rage. Lincoln continued his attack on the Court in his first State of the Union message, where he proposed reorganizing the federal circuits, part of a broader effort to break the long-standing Southern majority on the Court. But Lincoln also wisely rejected extreme Republican proposals to pack the Court by expanding it from nine to 13 justices, or to abolish the Taney Court entirely, acknowledging that Supreme Court decisions should be binding when "fully settled" by the people of the United States.

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[simpleconservative]

A general comment to all who have posted on this subject. Our nations founders feared despotic government and structured the constitution and it's amendments to prevent unfettered power excercized by elected officials. Political speech in particular was protected in order to promote an active battle of ideas with the expectation that the American people would decide which ideas and ideals best reflected their concerns. This was done to insure longevity of the constitutional representative republic they formed and to prevent a permanent ruling class from taking power from citizen legislators. Over the past few decades we have seen the results of unconstitutional legislation like McCain Feingold. The result has been a concentration of power in the hands of career politicians who have never done a single productive thing in their entire lives. They have never made a payroll, produced a product or service that anyone would voluntarily buy or subscribe to. They have set up residence in Washington D.C. without regard for representation of the folks from their district or state and controlled the political debate by concentrating the cash in ways that deny Americans and American institutions a voice. This decision was not only correct on constitutional grounds, it was righteous with respect to basic fairness and healthy with respect to the longevity of our system of government!

[voice34]

obama is misdirected, he needs to proclaim a national day of prayer, for this country to repent and turn to the Lord, we need to obey Gods commands and do what the Lord says obey his commands, obama i pray for you, for your decisions about gay marriaga, and threating and forsaking isreal, you are leading this country down a path of moral decay, this country will sooner or later will no longer be a christian nation, look at england, christians are being driven underground for their faith in jesus christ, while the gays and muslims are slowly getting stronger, truths light is slowing being put out, and the road obamas on america is next

[LuckOtheIrish]

I think its important to remember though the context all the circumstances surrounding the criticisim of the court.

1. The Dred Scott decision at the time it was handed down was virtually panned in the north, Lincoln was hardly alone in his criticisim, some of dissents were more critical, along with Plessy v Ferguson Dredd Scott is considered the worst decision in the history of the court

2. FDR's court packing scheme is generally looked upon with disdain by many people as an example of the executive branch trying to have control of the legislative, in laymens terms pretty much a violation of what the constitution is supposed to stand for. It should also be noted that though the court endorsed more new deal legislation after the scheme, the legislaors were also more responsible when it came to drawing them up, the court in many of their decisions striking down new deal programs were basically saying certain phrases in the legislation made it unconstitutional and if Congress was to change the wording it would be ok.

It should be noted that when FDR came up with the idea to add more justices he was attacked from all sides and not just the republican party

Obama is a lawyer so he should very well know if the Supreme Court has standing to strike down the legislation that passes through congress and though none has happened yet he would be wise to simply be careful and pay attention when it comes to writing the bill and criticizing the court, history has a way of showing that was popular is not always looked on with favor. FDR's court packing scheme is considered by many historians as an embarassment of his presidentcy .

[RobAla]

We all have our opinion about the Supreme Court ruling and the stand the President is making against the Court. I can understand the discomfort of some regarding the ruling that allows corporations to make contributions. However, I believe unions have been doing it for years.

My beef with the President on the subject is this:
When he proclaimed to the nation during his SOTU address that the ruling would allow foreign contributions to elections, he was lying through his teeth. I read the ruling. The Court ruled against 441b, but left 441e alone. In fact, one of the reasons the Court felt comfortable with ruling against 441b, was because it did not prevent foreign contributions (as 441e did prevent this).

Statements from the ruling below:

"Because ?441b is not limited to corporations or associations created in foreign countries or funded predominantly by foreign shareholders, it would be overbroad even if the Court were to recognize a compelling governmental interest in limiting foreign influence over the Nation?s political process."


"See, e.g., 2 U. S. C. ?441e(a)(1) (foreign nationals may not directly or indirectly make contributions or independent expenditures in connection with a U. S. election)."

Read the ruling. Americans deserve to know the truth.

[ToolMangler1]

"See, e.g., 2 U. S. C. ?441e(a)(1) (foreign nationals may not directly or indirectly make contributions or independent expenditures in connection with a U. S. election)."


An American subsidiary of a foreign owned corporation is not ruled as a foreign 'National'. (Picking at random) Lets say Toyota wishes to affect the outcome of a certain NHTSA ruling. They can do so by redirecting contributions to the proper congressman and it will be 100% legal.because of the SCOTUS ruling.

[jt92202]

I don't like what the S.C. did, only people should be able to give money to an election/ candidate (and really the person that is trying to be elected should be using his own money).

What I see is a lot of people complaining about the corporations that can now contribute but why don't they complain that the Unions can give lots and lots of money to the parties and the candidate. That makes me just as mad!!! The Unions as well as the Corporations should not have a steak in the elections, both have their own agenda and that is not the agenda of America, it?s the agenda of making crazy money that bankrupts America!

Only a citizen of the US should be able to give money, there should be a cap on how much the candidate can spend (millions and billions of dollars spent is wrong), TOO much money is being spent on elections

[jt92202]

AND maybe these two branches should stop having the pissing match they are in and get down to work. If the bill was flawed then lets get the flaw out of it and get a new bill back on the books! They love to talk and talk and talk but lets see some real action, don't sink the ship because you don't like each other!!! They are acting like CHILDREN!!!

[IndepTex20]

Based on your argument then all PAC's should not have the right to spend "as much money to influence elections" as you put it. Am I correct?

[IndepTex20]

"The President Wants a Confrontation and Roberts has Signaled that He Welcomes the Fight"

Are you kidding me?? This could get real ugly, real quick..........Stevens practices the law and has done so for 40 odd years. The Marxist in the White House was an adjunct professor who barely gave one lesson per month for what, 12 months? The Marxist will get schooled and the libs will cry foul................waaaaaaaaaaaaaaaahhhhhhhhhhhhhhhhhhh

[rightbehind]

If roberts had any honor he would resign.

[flierone]

If President Obama had any honor, he would resign!

[rightbehind]

roberts and three other right wing justices need to be impeached. I hope that people wake up and realise the joke these justices have made of the Constitution. Basically they have said that government belongs to the highest bidder. Takes 67 senate votes to impeach them. Hint, "the republicans will not do it".

[simpleconservative]

I am always amused by your complaint. Political action committees, Unions, Political parties as well as Corporations are all legal fictional entities that represent a human collective of common interest. Our founders intended to give voice to all views and the first amendment was a critical linch pin in gaining support for the adoption of the constitution and the formation of a federal government. Any justice that is mindful of history would join Roberts in this decision and any justice who joined a dissenting opinion would be more deserving of consideration for impeachment!

[flierone]

Rightbehind have you actually READ the Constitution?

[culturechang]

If Roberts doesn't like, make some better rulings that reflect the will of the people and the Constitution....which is his oath of duty.

Kicking down campaign finance in time of flourishing corruption was the last thing the country needed. And corporations are not entitled to Constitutional rights. People are....and only poeple.

The court is hypocritical in that it holds the narrowest definition of free speech until big corporations become impacted....then it liberalizes for companies, unions, and special interest groups who are not even provided with rights.

What's the matter Roberts? Feeling a little guilty?

[simpleconservative]

If the Obama administration does not like the ruling it is because they object to criticism of their policies. Obama vowed to adhere to the public financing program for his campaign in the primary, then reversed course when he realized how much cash was available from foreign donors. If your concern is corruption you may want to take a look at his campaigns receipts. The odd numbers like $27.32 corrospond neatly to foreign currency exchange rates and the volume of such contributions is astounding!

[geonertia]

Hmm, over a year old, but I can't resist commenting. Roberts should make rulings that reflect the will of the people? No. Setting aside which "people" are being referred to (we are not at all homogeneous in terms of our "will"), that is the legislature's job. NOT the courts, and that is NOT John Robert's "oath of duty", which you obviously have not read. The High Court's job, in large part, is to make sure that the Executive and Legislative branches are CONSISTENT with the Constitution -- REGARDLESS of the so-called Will Of The Peephole, as so loosely thrown about by the non-critically thinking. And ONLY the legislative branch is empowered to make laws (read = enact what they believe to be "the will of the people"). The Executive is to enforce and implement those laws, and the Judicial is to make sure that all subordinate laws and actions are consistent. Nothing more.

It is astounding that the average high school graduate doesn't even know that much. So much for public education.

[tsigili]

This is one of very few things, I agree with Obama, on. The court was wrong, and it encourages special interest behavior.

[flierone]

Why should the Unions have the right to contribute to and create advocacy commercials for candidates who bend legislation their way, particularly public unions like SEIU, and corporations should not?