Justice Roberts Stokes State of the Union Controversy
March 11th, 2010A Hard Lesson in Why Elections Matter
Analysis:
by Glynn Wilson
The arch-conservative University of Alabama Law School, with an active Federalist Society chapter, was the perfectly sympathetic setting this week for what most American legal experts would consider shockingly inappropriate political remarks by the Chief Justice of the United State Supreme Court.
While the University of Alabama national championship football team was being honored at the White House by President Barack Obama this week, Chief Justice John Roberts traveled to Tuscaloosa to deliver an incredibly boring academic speech, which wasn’t the point of his visit. Not one news organization quoted from it in their report.
Roberts knew full well he would be asked about the still stinging controversy between the conservative wing of the court and the president over a recent ruling favoring corporations in funding political campaigns, and remarks from the president during his first State of the Union address. And he knew he would have a sympathetic crowd with no protesters, since Alabama is a conservative state about as deeply enmeshed in the corrupt politicization of justice as any in the country.
The nation’s high court issued a 5 to 4 ruling in January that overturned a century of precedent on the ability of Congress to limit corporate contributions to political campaigns, a precedent that dates to the time of muckraking journalists and President Theodore Roosevelt’s Trust Busting days against the powerful influence of early monopoly corporations such as Standard Oil.
The Roberts court, or really the Bush court since President George W. Bush appointed two of the most conservative members, including Roberts, ruled that corporations and unions have a First Amendment right to use their general treasuries and profits to spend freely on political ads for and against specific candidates. That ruling overturned previous Supreme Court precedents and well established federal law.
While the decision was hailed by conservatives, libertarians and a few liberals as a victory for free political speech, Obama denounced it in the State of the Union address, saying it overturned a century of established legal precedent and would lead to the bankrolling of elections “by America’s most powerful interests.”
It was a powerful moment when the president said it looking down at the members of the Supreme Court, required by tradition to be present for the address, sitting right in the front row of the House chamber.
But the controversy didn’t end there. Justice Samuel A. Alito Jr., another Bush appointee, violated judicial custom, according to experts, by silently mouthing “not true” when the president made the remark about it overturning a century of precedent.
When Roberts was asked about the moment by a law student at Alabama, he said anybody can criticize the Supreme Court “without any qualm.”
“Some people, I think, have an obligation to criticize what we do, given their office,” he said, “if they think we’ve done something wrong.”
But Roberts didn’t stop there.
“On the other hand, there is the issue of the setting, the circumstances and the decorum,” he said. “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 to the requirements of protocol — has to sit there expressionless, I think is very troubling. To the extent the State of the Union has degenerated into a political pep rally, I’m not sure why we’re there.”
The remarks indicate Roberts may now agree with arch-conservative Clarence Thomas, the Justice who told a Florida law school audience last month that the controversy reinforced his decision to skip the State of the Union address.
“One of the consequences is now the court becomes part of the conversation, if you want to call it that,” Thomas said. “It’s just an example of why I don’t go.”
According to protocol, one member of the court is required to skip the address in the event of an act of war or terrorism when all three branches of government are together in one place.
The White House didn’t waste any time striking back at Roberts’ remarks.
“What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections — drowning out the voices of average Americans,” White House press secretary Robert Gibbs said in a statement. “The president has long been committed to reducing the undue influence of special interests and their lobbyists over government. That is why he spoke out to condemn the decision.”
Considering Roberts’ political background, it really is no surprise that he would orchestrate such a pro-corporate ruling, which is clearly one of the reasons Bush chose him for the court.
During the late 1990s, while working in private practice for the firm of Hogan & Hartson, Roberts served as a member of the steering committee of the Washington, D.C. chapter of the conservative Federalist Society, a not-so-secret legal fraternity that heavily influenced many of the appointments made by the Bush administration.
Roberts argued 39 cases for the government before the Supreme Court during that time, prevailing in 25 of them, including a couple of cases where he represented coal companies against unions and injured workers. In one of his few dissents, Roberts openly made fun of a California toad in an environmental case, arguing that the Commerce Clause of the Constitution did not permit the government to regulate activity affecting what he called “a hapless toad” that “for reasons of its own, lives its entire life in California.”
Of course Roberts had long been a toady for the Bush family, working for George Herbert Walker Bush when he was Vice President under Ronald Reagan in the 1980s. Then in 2000, during the hanging chad controversy that landed Bush before the Supreme Court, the court that handed Bush the election in one of the most controversial decisions in American legal history, Roberts traveled to Tallahassee, Florida to advise then-Governor Jeb Bush on what to do during the Florida election recount.
The entire incident should prove once and for all that elections matter. The working people of this country, especially in the South, need to wake up and start voting in their own self-interest, and not on hot button “wedge” issues. Abortion and gay marriage and the like are nothing but distractions from the real issues facing the federal government in making this democracy work, like fixing the economy by passing national health care reform — and limiting the influence of giant corporations on the political process.
Supreme Court Justice Samuel Alito frowned and shook his head as President Barack Obama spoke to Congress, mouthing the words “not true.” Obama had taken the unusual step of scolding the high court in his State of the Union address on Jan. 27.
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Tags: Chief Justice John Roberts, Clarence Thomas, George W. Bush, Justice Samuel A. Alito Jr., State of the Union, Troubling Remarks, University of Alabama Law School
March 11th, 2010 at 11:01 am
Some notes on this: The decision of the Supreme Court also opened the floodgates for unions and similar organizations spending money to advertise for and against candidates.
While the amount of money available for unions and those other organizations is much smaller, they are likely to be much readier to spend it.
At least part of the reason for that is that many corporations, especially middle-and-large size ones, have government contracts and doubtless would be loathe to advertise against politicians who may end up elected and in position to influence who gets government contracts and who does not.
And, all states and the federal election laws require that political advertisements be clearly identified as to who is paying for them. That alone, given the anti-corporate mood of the electorate, even among some on the right, seems likely to depress large amounts of corporate spending in this area.
Finally, whether the decision seems like good policy vis-a-vis the matter cleaning up elections, it was, in my opinion, constitutionally sound.
The first amendment was proposed, and adopted, primarily to protect political speech. That is abundantly clear from the Federalist Papers and other writings of Madison and others.
Either we have freedom of political speech for all, or we actually have it for no one, since changes in government policy could then restrict it or curtail it for specified groups. In that event, we are on the road to a corporatist society in which many, if not most, of the evils the left decries will become institutionalized cloaked in legality.
There are lots of examples of how corporatist societies work, ranging from Bourbon Spain to Peron’s Argentina to Mussolini’s Italy to the former Soviet Union. There are few if any Americans – left, right or center – who would trade in the protections of the Bill of Rights for the supposed benefits of those societies.
Non-corporate voices can be heard and prevail in a free society — the web press is a superb example of how it can be done. Restrictions on political speech, no matter the supposed nobility of the purpose, are the first step on the road to fascism.
March 11th, 2010 at 12:26 pm
Yana: Your libertarian tendencies are clouding your judgment on this to the point of naivete.
Corporations are already pouring billions into the political process through lobbyists and PACs and will no doubt seize on this conservative Supreme Court ruling to further their dominance of tax policy and elections at the federal, state and local levels.
Take Southern Company for example. Do you just not understand that Alabama Power already has undue influence on the government in the state of Alabama, and that this ruling will allow them to come out of the closet to control our lives even more?
How are we ever going to get the power companies to clean up the air and water if they can dictate who wins elections and runs our environmental regulatory agencies?
The original ruling that established the precedent was intended to stop big oil companies from dictating who is elected so they could pollute at will and pay workers slave wages.
As we saw under Bush and Cheney, they were back to the same level of influence a century later. And now this damn court has obliterated the one law we had that might have helped the Obama administration begin to reverse their influence.
Once this Congress passes a health care reform bill, as compromised as it might be — due to corporate insurance company influence on Republicans and Democrats in Congress — they should immediately revisit this issue and pass another law that may hold up to legal review. We must have a law that limits corporate influence on politics, or we may as well say Heil Hitler to corporate fascism and give up on the idea of democracy once and for all.
Is that what you advocate? The freedom to be a slave to the corporate machine? Come on, man…
March 11th, 2010 at 1:01 pm
What Roberts said was that to the extent the State of The Union address has become a political cheer leading event, maybe the Court should not be there. I agree. No matter who is President the State of The Union is embarrassing to watch. I disagree totally with the opinion in McCain/Fiengold.
March 11th, 2010 at 2:06 pm
I respect your opinion, Jack, but here’s mine.
I agree the court should be removed from politics. The problem is, it is not.
If we are going to elect judges in Alabama and confirm political appointees as justices because of their loyalty to a president like Bush and an ideology like corporate conservatism, the president has every right to disagree — and to say so in the State of the Union address, where millions of Americans will get the message.
I was never more proud to have played a role in helping get the first black president elected than that day when he looked down on those smug judges and castigated them in no uncertain terms. I got out of my Strat-O-Lounger and cheered myself! And I would do it again.
Somebody has got to stand up and challenge the direction this country was headed in under Bush. There is too much at stake now to play by the old rules. Politics completely subverted the judiciary in this country in the wrong direction for eight long years. Ask your buddy Don Siegelman.
How do you think we can ever make the pendulum swing back? It doesn’t happen automatically. Maybe it did once, but not anymore.
As Clausewitz wrote, “War is a mere continuation of politics by other means…”
We have been at war, for all the wrong reasons. It will take politics of a different kind to get us out of it.
Roberts’ comments are the one’s that are inappropriate. If he wants to stay out of politics, let him sit behind that robe in Washington and stay out of the political discussion, at least in my home state. Perhaps the members of the Supreme Court should refrain from taking public speaking engagements or responding to questions about politics.
March 11th, 2010 at 5:41 pm
Of all the things I am not, naive is number one on the list.
I am exceptionally well aware of the cozy relationship between state and federal agencies and the companies they are supposed to regulate, the revolving-door of top staff between the agencies and companies, and the political payoffs and corruption involved. I am also aware that corporations and other special interests already pour millions into PACs to support and oppose political candidates.
Why is that? It is precisely because government agencies, operating under administrative law, are able to allow companies to get away with a wide range of activities that the ordinary, common sense individual sitting on a jury would not allow under common law. Of course those companies are going to spend millions on political corruption, when the legalized payoff is billions.
It is also precisely because being in Congress has become a career, rather than a brief time in the national capital representing one’s neighbors: members of Congress want to stay there, with all the perks and superb health and retirement plans, and maybe end their careers, while drawing those government checks, working as lobbyists.
How do we fix this? Not by scuttling the first amendment for a defined group of people who, at the moment, are in great disfavor. Because that sets the precedent for future scuttlings of those rights for defined groups who may be in disfavor in the future.
We fix it by changing the rules for politicians: (a) you can only get elected to a couple of terms in Congress, then you’re out forever; (b) neither you or any member of your immediate family, once you’re in Congress or top federal office, may ever work as a lobbyist or for a company which has any government contracts; (c) Congress can no longer earmark appropriations.
Most if not all of that would require amending the Constitution. Then, let’s do it. Corporations will suddenly lose interest in payoffs to Congress members and other top federal officials if there is absolutely nothing to be gained by doing so.
But let’s leave them free to rant and rave about it under the first amendment — and not set the precedent for someday coming after leftist progressives who might, at that point, be politically unpopular.
March 11th, 2010 at 7:07 pm
The changes you propose might help, if practical, but they are not. Congress will never vote term limits on itself, for example.
You ignore one critical fact about this precedent. The free speech right in the First Amendment is there for individuals, not corporations. If the CEO of ExxonMobile wants to support a particular candidate through political advertising, let him do it without hiding behind the corporate logo.
A corporation is not an individual. Perhaps a member of a union might be, but do all the employees of the corporation agree? Or do they just keep their mouths shut, to keep their jobs?
March 11th, 2010 at 7:42 pm
I think Yana misses the point that corporations would not want to anger a prospective Congressperson. Corporations buy politicians without caring which party they represent, just as long as they stay bought, they stay on the dole.
I am so disgusted with our “representatives” both Democrat and Republican that i want to SCREAM. I think I will, THROW THE MONEY GRUBBING BUMS OUT!!
Health Care is a joke, I hope it fails.
The idiots in this country deserve to have it shoved up their ass by the insurance companies. Another place where “Congress” is bought off!
Maybe one day some people will wake up and quit worrying about abortions and gays and things that really just don’t matter and look at the big picture.
March 11th, 2010 at 9:41 pm
Dr. Stan Coty speaks.
The Health Care reform bill is not all we want, but it is no joke, and it is NOT going to fail. Follow our news page instead of talk radio. Pelosi just said yesterday they are very, very close to a reconciliation bill and vote.
Pelosi: Dems close on health care agreement
March 12th, 2010 at 2:19 pm
Perhaps it is most troubling to hear the Chief Justice of the US Supreme Court tell the U of A Law School how difficult it was to be surrounded by one branch of the government that was “cheering and hollering.” In fact, 2 branches of government surrounded the Justices: The Legislative and the Executive, by way of Congress, the Cabinet Secretaries of the federal agencies, and the President himself. In the words of the great Eleanor Holmes Norton in an interview with Stephen Colbert, “This is a civics lesson.” There are 3 branches of government. I have seen no commentary that anyone present noticed.
As to his comment that the rigors of protocol require that the Justices “sit there expressionless” during the State of the Union, I did not observe that, either. Justice Alito’s visible rebuke during the State of the Union Address was unprecedented. The President’s “adverse” remarks about the making of bad public policy should not be a surprise. When you issue an opinion like the one in Citizens United v. FEC, then you should expect controversy when the chamber holds more people who don’t think it’s a good idea to sell the government than people who do think it is a good idea … and you should be able to handle the criticism, as Chief Justice Roberts said. So why did he bring it up? Were we supposed to feel sorry for the Court?
Finally, the State of the Union Address has always been a political pep rally. It has traditionally been the President’s night. See also the Addresses in prior Administrations. Even the minority party traditionally bestows respect. This President has spoken to Congress twice. In his first speech, a minority party member shouted, “You lie.” In his second, a Supreme Court Justice shook his head and mouthed, “Not true, not true.” I have to wonder why these events are not raised when issues of political decorum and protocol are discussed.
At the risk of sounding like the great Jimmy Carter, what is so different about this president that dismissal of decorum and protocol is acceptable to the minority party? Today, March 12, George Wills’ column in the Washington Post called the “spectacle” of the State of the Union Address “increasingly puerile,” a word that comes from the Latin word for boy. I spy an answer.
March 13th, 2010 at 2:38 pm
My point is that without the public option this bill is a sham and a toothless tiger. There is nothing there to pull the teeth of the for-profit insurers. The Congress, dems and the gop, is owned by the corporations and are too scared or too greedy to buck them on anything. The Supreme Court is so politicized that they can’t wait to screw the common man. By the way, this is what I think and I don’t listen to talk radio other than sports talk.
March 13th, 2010 at 4:58 pm
You ain’t alone…
Just sayin’, give peace a chance. Give Obama a chance. Give health care reform a chance…
Once we have the enabling legislation to regulate the insurance industry for the first time, we can tweak it. When people see it doesn’t fully work without the public option, maybe we can get it.
If this bill doesn’t pass NOW, the national media will declare the Obama presidency over, a failure, and the Republicans will take back control of Congress. Then, in 2012, Sarah Palin will be the next president.
Surely you don’t want that…
March 13th, 2010 at 10:47 pm
then…all will be lost…
March 14th, 2010 at 12:18 am
Let’s hope not…