Chief Justice John Roberts “Secedes” from the [State of the] Union

By Charlie Barber
Staff Writer

“Constitutional dictatorship finds in the [American] Constitution a barrier to strong and abnormal action far more hostile than the fundamental laws and charters of England, France, and Weimar Germany.” -Clinton Rossiter

“The Court’s authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court’s complete detachment, in fact and appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.” -Justice Felix Frankfurter

In his recent whine about the setting of the State of the Union address resembling “a political pep rally,” U.S. Chief Justice John Roberts exhibits a colossal obtuseness regarding the behavior of his own Supreme Court a decade ago.

In so doing, Justice Roberts descends into the very political fray he decries.

Perhaps Roberts might wish to consult his ultra-conservative buddies, Justices Antonin Scalia and Clarence Thomas, who participated in a political pep rally of their own, Bush versus Gore, in which they and three others [Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Anthony Kennedy] rather than 105+ million American voters, picked the President of the United States in 2000.

What’s missing here from Justice Roberts, of course, is not a sense of history, but a sense of shame. He, like Professor of Constitutional Law and President of the United States, Barack Obama, is well aware of the U.S. Supreme Court’s problematic role in butchering American electoral processes that year, matched only by a similar intervention to decide the 1876 Presidential election in favor of Rutherford B. Hayes.

To his credit, Chief Justice Roberts refused to join clueless media who piled on President Obama for his alleged “break with tradition,” in criticizing the recent Supreme Court decision to allow corporate money and special interests, even foreign ones, to pour even more of their millions into our elections.

Mainstream journalists who study American History [if there are any], may recall that President Franklin Roosevelt did a lot more than simply criticize a Supreme Court in 1937, which, like the present one, was clearly on the side of fat cats against the vast majority of Americans. He attempted to “pack” it, by promoting a bill in Congress to enlarge its size.

Responsible liberals and conservatives of both Parties in the Senate brought a halt to this threat to our constitutional separation of powers, far greater than any raised by President Obama’s legitimate objection to actions by the Supreme Court, as well as inactions of Congress, that bear upon our current “state of the Union.”
I wish I had faith that arch-conservatives like Justice Alito are not bent upon destroying our democratic processes in ways referred to by President Obama, but I do not. Alito’s intemperate outburst during Barack Obama’s speech shows that he not only expects us to “take it,” but to like it as well.

I have a little more faith in Chief Justice Roberts, but not much, as long as he seems to ignore the damage that a rabidly reactionary Judiciary can do to Legislative and Executive branches in a democracy. It happened less than a hundred years ago in Germany and Italy. Long before Hitler’s first electoral success in 1930, a hostile Judiciary, loyal to an aristocratic Kaiser’s Germany, had successfully sabotaged substance and procedures of a fledgling Weimar Republic. In Italy, shortly after World War I, an anti-democratic Judiciary joined with other hostile branches of government to deliver a sixty-year experiment in constitutional government to Benito Mussolini.

As Benjamin Franklin reportedly said just a few hundred years ago, “It’s a Republic, if we can keep it.”

But we can only keep our Republic if we, like President Obama, House Speaker Nancy Pelosi, and Senate Majority Leader Harry Reid, also keep our cool.

I’m not so sure John Roberts can do that.

Is Chief Justice Roberts suggesting that he has a skin as thin as that of his colleague Samuel Alito, and is not capable of maintaining his judicial temperament in the relatively short period of time alloted to the State of the Union Address?

If so, he may wish to emulate the behavior of fellow Justices who no longer attend, presumably on similar grounds that it is beneath their “royalist” dignity.

Or is Roberts upset that he is in an environment that he cannot control?

If that is the case, he may wish to refer to a case that his court recently decided. The retention of “under God” in the “Pledge of Allegiance,” may justifiably upset civil libertarians, but it is, nevertheless, a highly useful warning for Chief Justice Roberts.

The Supreme Being referred to in the “Pledge,” is “God,” not “John Roberts.”

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