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Get Over It, Judge
by Andrew Cohen
Andrew Cohen is CBS News Chief Legal Analyst and Legal Editor. His CourtWatch columns and blog for CBS News can be found here. He also can be found on Twitter @cbsandrewcohen
Alex Brandon / AP Photo
Whoever suggested that the Supreme Court ought to be above public criticism? Andrew Cohen on what’s wrong with the chief justice’s thin-skinned response to President Obama.
United States Chief Justice John G. Roberts, himself an astute political herder
This whine and cheese, delivered to students at the University of Alabama, is unbecoming of the leader of the third branch of government. First, re-visiting the State of the Union kerfuffle
If Chief Justice Roberts was really so offended by those few sentences from the president, then no one should stop him if he wants to stay home next time.
They ought to have thicker skin that this, right? That is why the chief justice’s comments make a bright, personable, important man look petty. Sure, the president injected into his 70-minute-long speech a few sentences worth of criticism about the court’s recent campaign-finance ruling (with which a clear majority of Americans disagree). But the remarks were dank and detached compared with the razor-hewed junk that spews out of the mouth of the politicians who speak from that same podium during regular business hours on Capitol Hill.
Here, judge for yourself. Here is what the president said that night:
"With all due deference to separation of powers,
last week, the Supreme Court reversed a century of
law to open the floodgates for special interests—including
foreign corporations—to spend without limit in our elections.
Well I don't think American elections should be bankrolled
by America's most powerful interests, or worse, by foreign
entities. They should be decided by the American people,
and that's why I'd urge Democrats and Republicans to pass a
bill that corrects some of these problems."
Whether the point is right or wrong, should a justice or the court itself be immune from such respectful public criticism? Why, because of some self-styled need for decorum in a decidedly indecorous forum and venue? Because it’s suddenly disrespectful to talk candidly to someone you invite to your home? Because a sitting president can’t public criticize an unpopular Supreme Court ruling if the justices are in the room? Because the justices have decided they cannot get up and clap or boo when they want to? Who made the chief justice the etiquette master of the State of the Union ceremony?
It’s also true that the hundreds of federal legislators and executive branch officials who surround the justices (only six of whom bothered to show up for this year’s speech) can get a bit rowdy from time to time when the cameras are on them during State of the Union speeches. But it has been forever thus—including on each of the occasions when the chief justice sat and listened to his patron, George W. Bush, deliver rousing cheer-filled State of the Union speeches. During those years, the chief justice did not publicly criticize the “cheering and hollering” (from both sides of the aisle) and did not imply that he would not longer attend the affair.
President Obama criticized the court on a contemporary matter of debate and substance—as other presidents have done
Another famous legal scholar, Yogi Berra, once said that “if the fans don’t come out to the ball park, you can’t stop them.” If Chief Justice Roberts was really so offended by those few sentences from the president, then no one should stop him if he wants to stay home next time. If you can’t run with the big dogs, you really are better off staying on the porch.
Legal analyst Andrew Cohen writes the “Open Bar” column at Vanity Fair Online and is a correspondent for TheAtlantic.com.
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WICKET99
Couldn't have said it better myself!
johnwr3
I think it's about time that Roberts fired back at the our monarch and chief. The truth is Obama had his facts wrong and so do you guys. What Obama said during the SOTU about the Supreme's decision was factually incorrect. You guys are just angry the Unions have some competition now. FREE SPEECH was the issue not money. Oh, if you want to talk about arrogant and pompous take a gander at the Magic Negro. He's worse than Carter. Dems can't govern.
Natural-Selection
Clearly, you morons read the teleprompter as well. Thanks johnwr3 for bringing some sense to the argument these lemmings drug to the table.
dogBreath
pic achu
i second the notion!
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Rafish
Hey Banjo!! That You? Last time I saw you was in dat movie Deliverance. How are the Kids?
goldgoose
Not talking about 2000 but since you brought it up, you must be talking about a Murdoch newspaper consortium that concludes whatever they want to conclude. Be difficult to determine the Florida election results since the Supremes stopped the counting of the votes and the State of Florida lost the voting results. However the exit polls predicted a Gore win and for the first time, exit polls were wrong in 2000. What a laugh. As Supreme Court Justice Stevens said in dissent, "We may never know who won the election but we know who lost, the Supreme Court lost." Stevens was so right and now the Supremes have given foreign owned corporations "free speech" and the freedom to buy American elections. Roberts should be tarred and feathered and impeached.
ratLips
Rafish
ohhhhh... half court swish!
ratLips
Banjo1
The goldgoose laid an egg on your face dood.
booga20
Others that would use your language and tone making a conservative point would be banned from the comments section! You make me sick Picachu.......I am conservative and I agree that the decision on corporate and Union donations was wrong!!..very wrong!!........but I also feel very strongly that Obama was dead wrong in publicly criticizing the Supreme Court in that venue especially......It truly in an intangible fashion threatens the separation of powers...."This country is in deep trouble"...."A house divided among itself will fall"......
YogiBarrister
Obama was absolutely correct in criticizing the rightwing political agenda of the Roberts Gang. We cannot afford to allow another Republican to become president, lest they appoint another corrupt idealogue to a lifetime appointment. There are legitimate reasons for Congress to impeach and remove him from office.
Ronin58
Not sure that I see your point about the separation of powers.
Can you elaborate on how the SOU speech ,critical of the SC it might have been, had undermined the "separation of powers" ?
How was the Court effected by this criticism ? Was its standing diminished ?
Was there any impact on the Citizens United decision ?
Can the Justices be removed ?
And you're right ...true conservatives would be more thoughtful and even erudite in their posts...which is why they were sorely missed on this comment thread .
Resolute
criticizing them in a public venue threatens separation of powers? How? When did he threaten to try and have them impeached? They're already insulated from political pressure.
I think you might wanna turn down that melodrama a few notches.
HollyK64
I'd love to see Obama sitting in some audience somewhere and having to listen to a supreme court judge criticize him. Obama would explode and would probably bring the issue of race into the picture. Obama has two modes and two modes only: tyrant or victim.
roger37
Not to mention that Roberts, in his confimation hearing, assumed that innocent, babyfaced look and said something like, "A SCOTUS Justice's job is to be like a baseball umpire, calling balls & strikes, and not making rules."
Well, you were lying, Roberts, and you deserve criticism, you corporate spittle-licker. If there was ever a decision that rejected stare decisis and made law, Citizen's United was it.
-----
And Banjo, is that you? Are you back? The closeted gay homophobe that can't control his impulses?
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TOMMcG
Imagine - here is guy who signed onto adding more speech to the mix, who thought it desirable to give a constitutional right of speech to a legal fiction, who defended the idea that a market place of ideas would strengthen the political system. But when he is on the listening end of speech, he suddenly demurs complaining, of all things, of politics (yes politics!!!) at the SOTU speech!!! Wow! But he added more criticism of the Presidents use of speech by pointing to the "circumstances" to the "decorum" as if speech ought not be free flowing, spirtied, and hard hitting in the market place. Looks to me like the Chief J has his own agenda and it seems torn right out the Federal Society's playbook. Watch out, we are in for some real Earl Warren style judicial activism but not on behalf of the poor, the condemed, the have nots but on behalf of the rich, wealthy. powerful, white society with witch Roberts identifies and seeks to protect.
maluminse
Agreed. - as well Supreme Court Justices are not supposed to act like politicians and have no place jumping in the fray. (showing your true character Roberts - yes you are a politician and your party is obvious Mr Objective) The presidency is a political position so yes Obama is acting like a politician as will the next president and so on.
STLHawkeye
Instead of looking at this from your own personal partisan perspective, try some objectivity. Federal judges demand decorum in their courts. It is formal and has been since Article III of the Constitution created the federal judiciary. The one place where Supreme Court justices interface with Congress and the President (beyond the Chief Justice swearing in a President) is the State of the Union Address. Presidents traditionally do not make comments about the Supreme Court out of respect for an independent judiciary. In short, what makes good politics does not necessarily make a law valid. This is what happened with McCain-Feingold. It is good politics to limit corporate donations to political campaigns, but there is a legal problem. Corporations are "persons" just like invividuals. So the Supreme Court majority ruled on a basic principle. If corporations are persons (and they are federally and all 50 states), then the 1st Amendment right of free speech equally applies to them. Congress and the President cannot limit corporations' fee speech just like they cannot limit individuals' speech. Both are "people" -- period. Then the President, who is a former constitutional law professor, breaks tradition. He criticizes the Supreme Court for upholding free speech under the 1st Amendment. That is why Justice Roberts, et al. are quite stunned by all of this. Politically, the President disagrees. Fine. But the Supreme Court's job is not to uphold politically popular laws. Its job is to uphold the U.S. Constitution. President Obama (unlike President W. Bush) knows that better than anyone. Therefore, President Obama has made a big mistake by making a public example of the Supreme Court. It does not befit the presidency, nor does it befit this President who knows better.
EdinNJ
According to Gallup, 80 percent of the country agree with the president regarding this decision.
That percentage will not be reflected in the comments here. Republicans are nothing if not whiners, and this argument about "decorum" is typical. After a year of coordinated teabag disruptions at public forums, legislators questioning birth certificates, shouting Socialism and "you lie!", they will rush to defend a 3 month old on the basis of decorum, while the supposed "liberal media" uncritically reports this story as news.
By the way, 10,000 protesters for HCR in DC and not a word of it on TV.
dana64
i saw it only on MSNBC COUNTDOWN
devilsadvocate
Republicans have done their share of whining. But who whined about it in his State of the Union address? I can accept the assertion that Roberts is a little thin-skinned, but about as equally so as Obama himself is.
And the "Get Over it Judge" headline is a joke. It's not as if Roberts actively went out of his way to voice his complaint. He was merely asked a question regarding his thoughts about it. Nothing wrong with that. Apparently people who don't sit on the Supreme Court even thought it was classless and immature behavior on the part of the President.
Although planned, I think the President knew he was crossing the line with his remarks. You could hear the hesitation in his voice when he mentioned it. And it's not as if his aides would not have been aware of the seating arrangement beforehand. It mad for some good political theater. And when you saw even Justices Sotomayor and Ginsburg sitting silently with the rest of the Justices, they knew that despite their agreement with the President, that they as members of the court had been slapped in the face along with the rest of their colleagues.
Maybe the decision wasn't popular, but despite the President's complaints, he still must abide with it.
FarLeftFist
So this guy is for for freedom of speech as long as it is done in the right decorum and setting. Then someone better tell this man their are a bunch of RW assholes protesting a soldiers funeral, that too doesn't seem like the right decorum either.
Republicans will slowly strip our freedoms and liberties, under republican rule, one day free speech will only apply in your very own living rooms, even the outside porch may be off limits. These "conservative" justices already have made our citizens voices smaller.
liberaljesus
John Roberts and the conservative court sold out hard working Americans to the corporate elites! He is such a gutless un-American whiner and needs to STFU as he's done enough damage as it is!
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Hotfrostins
I think that Roberts late display of disdain over such modest fair criticism is evidence of a deep vein of racism that flows within him and most of the establishment GOP (white). If this President was not a Black man the message wouyld be much easier for them to recieve. But being he is a Black man, the tendency is towards negatiove knee jerk and stuuborn refusal to hear the message..... Its clear evidence or a racist bent.
standfast24
Were Cohen's comments dictated by Rahm and the WH, what a shallow criticism of Roberts in defense of a very low class move by Obama.
First is it too much to expect our President who is a Harvard lawyer to correctly summarize the SC ruling. Yes, Obama lied and used cheap rhetoric to mis-characterize the ruling.
Sure Obama can say in a speech that he disagreed with the Supreme Court but at least be correct in your criticism.
This from the President who lectured everyone about how he would be post partisan, so he calls out the justices in his first SOU.
Plus Obama said he would take public money for his campaign and then changed his mind.
The President who is owned by a set of special interests SEIU, AFL-CIO, trial lawyers, Soros, complaining that our elections should not be bankrolled by special interests- as
if they are not already. The hypocrisy is amazing.
Picachu
Fox News called. You next brain washing is due. Please call Glen, Rush or Sean to schedule an appointment.
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Grundy
You misunderstood, Picachu -- they called you for a 'brain fill' because of your brainless comments and for a hearing/sight test. The dribble that you are consuming now has affected your ability to think and comprehend logic when displayed to you.
roger37
"Damned good buggering." Yep, that's the same Banjo.
UnholyAlliance
Actually standfast, you're wrong. Obama's summary was correct, Citizens United was a terrible legal decision in several regards, which is why it was only a 5-4 majority opinion. Unfortunately, because you are obviously a political hack and not a lawyer, you wouldn't understand the reasons why it was a terrible decision, so I will save you the explanation.
Regardless, the point of the article is that nothing Obama spouted off about the decision was really that bad and was certainly not bad enough for a chief justice to cry foul. With that, I agree, as the majority justices in that decision deserve a far worse tongue lashing (particularly Scalia, who just three years ago agreed that 18 year olds cannot have free speech on public sidewalks).
Grundy
All Big O did was to deliver another campaign speech to the cattle rustlers of the Big D ranch and give some potshots at the good guys looking on.
devilsadvocate
It would have helped had he got his facts correct.
quiet_warmth2
" The hypocrisy is amazing."....right back at ya !
StellaRay
standfast24,
1. You say Obama's call out regarding the SC ruling was low class. Perhaps you meant to say "for the lower classes," ---which now include large swaths of the middle class in America.
2. The only mistake President Obama made in characterizing this ruling is that he didn't go far enough. What he should have said is that this is the most anti-democratic ruling since Dred Scott and more threatening to this country than terrorism will EVER be.
3. This president did not "lecture" about being post partisan, he called upon us to ask for a higher standard. Then he walked the walk at considerable political expense. I'm sure you've heard that many progressives think Obama has been too damn post partisan in a time when the republicans have
no intention of helping him out.
4. So what if Obama said he would take public money and changed his mind? He was within his legal rights to do so. Don't get me started with what John McCain has changed his mind about. Politicians change their minds, even your guys.
5. As for the president being owned by special interests, well bubby, our whole system is damn near owned by special interests, which brings us right back to that pesky SC ruling that has now given those special interests cart blanche to buy our government lock, stock and barrel.
Get it yet?
dana64
very well said................StellaRay
SUPREME COURT should know that they have lost CREDIBILITY since 2000 Bush/Gore.
Roberts and ALITO are POLITICAL hacks almost.
let me remind them that 80% of AMERICANs were and are against their RULING .and the CONGRESS applauded the President.
too.
Obama also prefaced his line with DUE RESPECT .if i am correct.
darsmind
StellaRay: The only thing that will stop special interests will be leaders with character. Leaders that vote according to what is right rather than what is expedient. Our current crop of politicians lack the moral character to simply do what is right for the people they govern. If they did we'd have a country worked rather than this mess.
Obama was wrong in calling out the Supreme Court in his speech- he did to win points and make himself look better. that shows the lack of leadership and statesman like quality he possess. For Roberts to answer a question at a speech is fine- he did not go on the news and say something about- no he pointed out that the President was out of line.
I could careless about the ruling- it will make no difference to future campaigns- change will come from character.
StellaRay
darsmind,
If character was the solution certainly a man like Lincoln wouldn't have ended up presiding over a civil war---because that's what it took, for starters, to undo Dred Scott.
Ronin58
thoughts before our conservative friends arrive :
1. Maybe the Chief Justice at some level was aware that Obama had gotten some payback on him during the SOU speech for the way he f***ed up the inaugural swearing in ?
He felt he could get some nachas from the Crimson Tide Law School audience .
2. I suspect the Chief Justice would not have given this same speech to the law students at : Harvard,Yale,Stanford,Penn,Michigan, Columbia, Cornell,Northwestern,Chicago, Georgetown,Notre Dame, UCLA,Vanderbilt,Duke,UVA,USC, to name but a few.
( he wouldn't have been invited to Berkeley).
Does Bob Jones University have a law school ?
3. With this ruling from his court, he has now become the Roger B. Taney of the 21st Century.
dogBreath
ronin
"thoughts before our conservative friends arrive"
ha hah ah h ahah haaah hahhaaa ha
but
you left out this bit:
when the "conservative brand" arrives
the IQ the discussion room drops severely and all discourse
descends into useless drivel
just a wonderful august "town hall" crowd...
Picachu
Conservatives hate activist judges. Oh wait, conservatives hate "liberal" activist judges. Conservative activist judges are okay, especially when they give the white house to a creatin who has R beside his name.
jon3425
The court is not above criticism.
However, flogging invited guests, at a public event, is tactless.
Ronin58
Interesting point.
BTW ...Justice Scalia is renowned for his tact on the bench ...with his fellow justices as well as the attorneys appearing before the court .
The President is a constitutional lawyer by training and profession...he knew what he was doing ...
Reminding the offending Justices that what they did was a bone-head interpretation of the Constitution is his duty before the whole country...
I think what astonishes most of us is what a Pussy Justice Roberts sounds like.
Warren, Taft , Burger,and yes,even Rehnquist, would have sucked it up and stayed silent . A real jurist would have saved his emotions and sensibilities for chambers ... not in front of a group of law students and faculty ...albeit in a friendly zone.
And Lincoln would have flogged him for real !
Grundy
For a "trained constitutional lawyer by training and profession" he made a huge mistake and was inaccurate. HE WAS WRONG! It would help if he would move out of his long standing 'campaign mode' and start learning what it means to be a real President instead of 'in-training' and being a world class apology and fool. Having been in Europe - they regard Big O as a dolt and an inexperienced, naive danger.
StellaRay
This was not just a "public event," this was the first State of the Union address after the Supreme Court made the most aniti-democratic ruling since Dred Vs. Scott. I can't think of anything more threatening to the State of the Union than this ruling. I would have considered the President remiss not to mention it and in fact, wish he'd used stronger language.
Tactless is hardly the issue or an appropriate word to describe a just response to the court's off the rails ruling.
ChanRobt
"The most anti-democratic ruling since Dred Scott"?
Give me a break, StellaRay. You don't know what hell you're talking about.
StellaRay
Chan Robt,
Please tell me what you think Dred Scott was? Tell me what you think it meant in terms of the constitution. Perhaps through the exercise of writing this out you will come to realize that when the supreme court begins to declare who and what has rights of personhood we're in like territory.
No, I will not give you a break ChanRobt. Because you take the cheap shot instead of backing yourself up with substance and fact. Your game plan is to insult rather than illuminate. Like most of the right. Why? because you can't illuminate.
roger37
Stella, I agree totally. Nice couple of posts.
Ask Chan whatshisface what stare decisis means.
dogBreath
jon
normally i would fully agree with you on right manners and in this case
but
the horrendous decision by the court is, and promises to be, the undoing of our democratic system
the democratic system is already under siege from capitalism
but this
this is the death knell unless congress quickly makes "counter laws" to
mitigate the decision
obama had a forum to make a sound alert to be heard by the most people
possible
so
he took it
if you have followed his behaviors since running for office and winning
you will see, he has excellent good manners
to break from those excellent good manners has meaning and purpose
he is very thoughtful
so
he thought about it and pulled a move...
tomfarr
Excellent good manners? He is a vulgar Chicago pol, a fake, a narcissist.
He has rotten manners.
roger37
Uh, he has "rotten manners?" Say what? Does he chew with his mouth open?
BTW, BHO is not of the Chicago establishment. The old guard headed by the father of the current Dick Daley was a racist old bastard that did everything he could to perpetuate racism in Chicago. They would have hated Obama.
And I doubt if anybody from the Chicago political establishment ever went to Columbia and Harvard, let alone became editor of the Harvard Law Review.
You know not of what you speak, mofo.
Valkyrie607
Urging Congress to carry out its constitutional mandate to protect our political system from corrupting influences hardly counts as "flogging." Hyperbole much?
confused
its only fair that poor Mr. Roberts is upset. He's upset a lot of people with his recent rulings. I hope he loses sleep over it.
dogBreath
i like that
it seems fair...
Superlib87
I certainly agree that the ruling in question was idiotic and ridiculous. Corporations are NOT citizens, and should NOT have the same rights that individual citizens have.
But of course, I feel that same way about unions (which federal courts have allowed to donate unlimited time and labor to candidates), and I also feel that the Keno decision was idiotic in allowing "public benefit" to be considered the same thing as "public use".
I do feel that it was a disgrace both for the President to criticize a Supreme Court decision in a State of the Union speech, and for a Chief Justice to criticize the President's remarks. Wish they had both shown a little more character and class.
It's a shame that neither conservative nor liberals really want the Constitution to MEAN what it clearly says....and that both applaud and condemn "judicial activism", based on whether they like or dislike the results.
Ronin58
Super
You make some good points here...I'm not sure "disgrace" fits the offense in the President's case ...he was pissed off ...and as a constitutional scholar he had a higher degree of outrage...but I can stipulate to your point .
You do make the bells ring with your assertion about judicial activism ...
but then the framers of the Constitution knew that it would one day be interpreted by fallible and contentious human beings , which is why 3 branches of government are infinitely better than 2 .
You're right about the Unions ...but wouldn't you agree that their resources are
dwarved by those of global corporations with huge budgets and enormous favors to bestow. ??..I discount the Teamsters from this set.
whipmawhopma
Superlib87 - 'Wish they had both shown a little more character and class.'
Exactly.
Picachu
Conservatives don't actually bother to spend time with people who are not conservative, and thus become confused and irritable when people disagree with them; fundamentally can't see how that's even possible, which shows an almost charming intellectual naiveté. Less interested in explaining their point of view than nuking you and everything you stand for into blackened cinders before your evil worldview catches on like a virus. Conservatives have no volume control on their hate and yet were shocked as Hell when Rush Limbaugh went deaf.
Ronin58
Picachu
Charming intellectual naivete ? !
A 19-year-old sophomore could be charming in her/his intellectual naivete ;
however, the irritable radioactive reactionaries that you describe could never be charmingly naive in any context...unless you find a chubby dude in camo and a baseball cap pointing an assault rifle at you as a riposte to your witty bon mot an example of an enchanting encounter.
sophia5
Earth to Far Left Progressives.
You are 19% of the population, you are the ones out of touch.
What Obama did was classless, in that setting, where that
sort of Condescending Dictatorial Behavior was out of line.
But, what else would we expect from the man who has,
on more than one occasion,
lectured and chastised like an Arrogant Hugo Chavez Wannabe.
Ronin58
Sophia 10%
As part of the other 70% of earth's population who are neither left wing or reactionaries , I wonder if you consider us out of touch?
Your monotonous,humorless, and unoriginal observations do not serve the cause of conservatism,or add anything useful for your side.
Take a page from some of the intelligent and well informed conservatives who post on TDB...they can skewer an unfounded liberal assertion with humor and some good arguments .
And if you think I'm being arrogant, ask your friends how you sound ...
FarLeftFist
Note to Sophia:
A recent study finds that Liberals have a higher IQ and a generally more successful life than "conservatives", I guess you fall into the percentage of the population with lower IQ's. See how broad that brush can get.
sherrybb
Poor John, you just made a decision that corporations have free speech, but you don't think the President should??? You lied in your confirmation hearings about what you saw the role of the Supreme Court....you have totally gone against being the kind of justice you said you should be. Personally, I don't think that a perjurer should be the Chief Justice. Go whine somewhere else!
devilsadvocate
And you ignore the whining of the President?! Corporations are entities in which people form for a specific purpose. They have the right to both assemble in this manner (in the form of a corporation), and also have the right of freedom of speech. Both of these are outlined in the First Amendment.
tomfarr
Cohen, you've been hanging around other Democrats too long and gotten used to their sleazy behavior and lack of any sense of decorum. The Justices should have walked out on Obama. He
deserved to be embarrassed in front of the TV cameras.
HollyK64
I would have loved to seen a walkout.
StellaRay
HollyK64,
I bet you would have loved to see a walkout. Your whole party walked out a year ago, and I know how you cheer their abdication of governing.
StellaRay
I bet you would have loved to see a walk out. Your party walked out a year ago, hasn't bee back since, and I know how much you cheer them for doing so.
Ronin58
It would have been the 5 Justices that would have been seen to be embarrassed by walking out. Politicians walk out. Delegates walk out.
Jurists keep their mouths shut and their own counsel until they are in chambers. If the 3 Stooges had thrown a cream pie in their face, it would have been their duty to wipe it off and remain seated and mute.
Frankly having the Justices walk out would have been remarkable... the press would have spun it as their "shame" ...
Well...it's another possible interpretation isn't it?
tomfarr
Well, the NY Times would have, and the other liberal propaganda organs, and Olbermann would have had apoplexy. But most viewers, other than Obama worhippers, would have applauded.
sjcarl
Roberts is a girlie-man.
Ronin58
Great allusion !
Hans and Franz !!!
Thank you.
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