Delegitimizing the Roberts Court

David Marion

February 1, 2010

James Madison, among other leading Founders, understood that an independent judiciary and a commitment to the rule of law were especially critical to the preservation of a republic of rights. President Obama’s calculated attack on the United States Supreme Court in his State of the Union Address constituted a dangerous abandonment of Madisonian reasoning by the most visible representative of the people. The practical effect of the President’s rhetoric, and perhaps the intent as well, is to de-legitimize the Supreme Court. The end result of this process is a society defined by “power politics,” not stable constitutional discourse and law.

Americans often forget that Founders such as James Madison, Benjamin Franklin, and George Washington created more than a new system of government for the United States. They were self-consciously involved in creating a “way of life” for the American people. For Madison, the “father” of the Constitution, the governmental system was not an “end” in itself, but a very important “means” to the creation of a distinctive social order. The objective was a way of life that incentivized people to “exercise their faculties” freely, to paraphrase from Madison’s Federalist Paper No. 10, or to “be all that they can be.”

Unlike many public officials today, Madison believed that a decent and competent democratic republic is a fragile and precious thing that is not infinitely malleable or resilient. It needs to be carefully nurtured and protected. Care must be taken to insure that the people and their officials are up to the job of self-government, which means that they must be up to the task of preserving the institutions and culture that are essential to a decent republic of rights. And among the most important of these institutions is an independent judiciary that is committed to the impartial resolution of legal and constitutional disputes.

There is good reason for the White House to fear that the Supreme Court could be an obstacle to the advancement of President Obama’s ambitious agenda. The modern Court under Chief Justices Rehnquist and Roberts has been willing to protect state interests and limit national authority in commerce power and state sovereign immunity cases, and has employed strict scrutiny in cases involving even allegedly “benign” uses of racial classifications. In each instance, a divided Supreme Court has grounded its rulings in constitutional reasoning. By contrast, the President cited political not constitutional considerations to justify his attack on the Court for extending First Amendment protection to virtually all campaign-related “speech” by corporations, including non-profits, and unions.

While reasonable people may question the Supreme Court’s assertion that campaign-related expenditures constitute a form of speech that deserves protection under the First Amendment, President Obama’s criticism of the Court for positioning corporations to exercise a dominating influence over policy (“I don’t think American elections should be bankrolled by America’s most powerful interests”) smacked more of “class warfare” than of a dialogue on the proper meaning of the First Amendment. Both the tone and content of the President’s criticism of the Court seemed to be calculated to embarrass and discredit the institution that is generally recognized as having a special responsibility to interpret and protect the Constitution that gives direction and shape to the American way of life.

The President’s attack on the Court clarifies his view of the stakes in the on-going debates over such matters as governmental regulation of the economy, taxation and entitlement policies, and federal-state relations. His willingness to launch a political attack on the non-political judiciary before a public audience of 40-plus million viewers is evidence that he considers the stakes to be very high. And, indeed, the stakes are very high when it comes to matters that influence the way of life of the American people. It is precisely for this reason, however, that we need to protect the integrity of the Supreme Court.

A partisan strategy that would delegitimize the Supreme Court in the eyes of the people opens the door for “power politics” rather than sober constitutional reasoning to serve as the principal vehicle for deciding critical issues touching both domestic and foreign policy. Madison’s complicated system of separated and divided powers was contrived precisely to promote sober discourse and lend a good measure of rational dignity to governance. It is hard to imagine Madison’s system producing the results he desired in the absence of a judicial department that enjoys the respect of the people when it comes to mediating constitutional disputes. The Supreme Court drew attention precisely to this fact in a controversial abortion ruling upholding Roe v. Wade in the early 1990s: “If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals.”

All of this is not to say that public officials may never question the reasoning or rulings of the Supreme Court. The content of the criticism as well as the manner of its delivery, however, are especially important whenever the credibility of the judicial department is at stake. It would be one thing for President Obama, in the proper forum and with due respect, to charge the Court with violating principles of separation of powers or with failing to make constitutional arguments when ruling on the meaning of the Constitution’s language, but his objection had to do with the Court’s failure to assign sufficient weight to the political consequences of its reasoning. While calculations of a political nature are entirely appropriate when it comes to decision-making by the legislative and executive departments, such calculations are not germane to judicial decision-making. As such, President Obama’s attack was problematical both from the point of view of its substance as well as its intended effect.

There are serious challenges facing the United States. It will be unfortunate if power politics not only drives the national debate on these challenges but determines the nature of our response to each. It will be especially unfortunate if we turn the judicial department into another political department. Only if sober constitutional discourse trumps power politics will this republic be well positioned to secure for the American people the distinctive way of life that leading Founders associated with a decent and competent democracy. It is critically important that all public officials, and especially the President, do their part to preserve the conditions that are essential to “rational” and “dignified” governance, and those conditions must include preserving the independence and legitimacy of the American judiciary.

David Marion is Elliott Professor of Government and Director of the Wilson Center for Leadership in the Public Interest at Hampden-Sydney College.