The normally restrained chief justice of the United States, John Roberts, has taken a rhetorical whack at the president and Congress.
In an appearance Tuesday night, Roberts called the State of the Union address a partisan "pep rally" and questioned whether the court should continue the tradition of attending.
The State Of The Union Incident
What seems to have set Roberts off was President Obama's State of the Union criticism of a recent high court decision, Citizens United v. Federal Election Commission, that invalidated a 100-year-old ban on corporate campaign spending.
During the address, delivered in January, Obama said that 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."
At that line, Justice Samuel Alito mouthed the words "not true" and shook his head, while the other five justices attending the speech sat stone-faced.
Now, Chief Justice Roberts has struck back. Answering a question from a student at the University of Alabama Law School, Roberts said officials are entitled to criticize the court's decisions, but in a rare public display of temper, he questioned the "setting" Obama chose, and the "decorum" of the House and Senate.
Roberts described the State of the Union address as a kind of public hazing of the court.
Said the chief justice: "The image of having the members of one branch of government [the Congress] 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," he added, "I'm not sure why we're there."
Presidential Criticism Not Without Precedent
Presidential criticism of Supreme Court decisions at the State of the Union is nothing new. Presidents Theodore Roosevelt, Warren Harding, Franklin Roosevelt and Ronald Reagan, among others, all did it.
In 1988, for instance, two years after the court again reaffirmed its ban on school prayer, President Reagan noted that the court and Congress both acknowledge God at the opening of their proceedings, and he called for a constitutional amendment to reverse the school prayer ruling.
In 1984, six months after the court reaffirmed its Roe v. Wade abortion ruling, and again at the State of the Union four years later, Reagan again was strongly critical — asking Congress to enact a constitutional amendment to overturn Roe.
"To those who say this violates a woman's right to control her own body," Reagan said during his 1988 address, "can they deny that now medical evidence confirms the unborn child is a living human being entitled to life, liberty and the pursuit of happiness?"
As for Roberts' criticisms of Obama, White House press secretary Robert Gibbs responded Tuesday night by focusing not on the court, but on the campaign-spending decision. The president, Gibbs said in a statement, "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 and is working with Congress on a legislative response."
'Process Is Broken Down'
Supreme Court attendance at State of the Union speeches has been spotty, and often uncomfortable. Incomplete records at the Supreme Court curator's office indicate that justices first attended in 1913, but did not attend regularly until the 1950s. In 1937, President Roosevelt expected the court to attend. But as one of Roosevelt's top aides, Harold Ickes, wrote in his diary, someone apparently tipped off the court that Roosevelt's speech would be critical of recent decisions, and none of the justices showed.
Even today, there is often only one justice in attendance during the president's address, as a sort of token representative of the judiciary. And each justice decides for himself or herself whether to attend.
All of them, however, have been subjected to the confirmation process, and Tuesday night, Roberts was highly critical of that, too.
"I think the process is broken down," Roberts said, adding, "The senators ask questions that they know we can't answer. We tell them we can't answer, and then they ask more questions we can't answer."
Roberts said that senators would learn more about nominees by asking them what books they read.