Out of Court Sparring

It remains to be seen whether the latest little foray by Chief Justice John Roberts will stir up the peapatch or just die on the vine. I do admit that I've wondered what the Supreme Court is doing attending the State of the Union--my assumption is that it is a relatively recent "tradition" that brings the three branches together. I say recent because until FDR's time, presidents did not deliver their State of the Union reports before joint sessions of Congress at all, preferring to transmit them in writing.

Given that Roberts was an advocate and a fairly well-known one, prior to his being named to the bench, one might assume that he's used to a bit of give-and-take. I suppose that being in the House and having the President turn to you and your colleagues as he unloaded against one of your decisions was a surprise but Harry Truman's remark about heat and kitchens comes to mind. Roberts and his right-wing pals can push counsel around in their courtroom but apparently what he called "hollering" in the legislative arena was too much for his tender ears.

He should show up at the British House of Commons some day and hear them roaring as the debate heats up. Roberts seems pretty sure of himself for a man who has spent his life being insulated from the pressures most of us must endure. If it were up to me, the White House would up the ante in terms of castigating the campaign finance decision, one that went way beyond the bounds of what needed to be decided to impose the activism of the conservatives on us.

After all those years of whacking the hell out of the Warren Court, are conservatives now telling us that it's not right to blast the Supreme Court? Utter nonsense--there are too few ways of getting their attention since they can ignore anything they don't want to hear. Roberts kept his nose clean and the Democrats were afraid to vote him down as an inappropriate nominee because of his reactionary background, as they also were with Alito.

It's about time that Obama puts up some real liberals for judicial vacancies. The system won't work if only the conservatives nominate their true believers. If you wonder why no one on the Supreme Court merits a whole lot of respect, it's because we have sunk to nominating people without significant ideological records. All the so-called "liberals" on the bench are really what we used to call moderates: Stevens, a law firm partner from Chicago whom Gerry Ford put on the court; David Souter, known in New Hampshire as a conservative attorney-general; and Ruth Bader Ginsburg and Stephen Breyer, two mildly progressive academics. O'Connor quit so a fellow Republican president, even one she may not have liked a whole lot, could name her successor.

The whole business and all the fakery that goes on about the nominations makes me realize that the eminently pragmatic FDR had it right when he tried to pack the joint. He too had a Supreme Court majority that decided it would keep the government from dealing with the worst economic crisis in our history. This Supreme Court majority--Roberts and his pals--deserve to worry the way the Nine Old Men in the 30s did.