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Response to “Justice Roberts on The State of The Union”

This was originally a comment by Scott Blake to the post below. I believe it deserves its own posting due to its detail and length.  -Mark Berardi

I think Obama’s comments at the Court were inappropriate. I understand that Presidents have called out the Court in the past (Reagan and FDR for example), but it puts the Court in a terribly awkward position. They have to sit there, like “bumps on a log,” while the Senate and House stand behind them clapping and jeering them. I question Obama’s choice of words. He could have made his point (needing to write new campaign reform legislation), without expressing his personal view that the Court was wrong.

More than anything, the Court has begun to look like a partisan branch of government. The conservative mantra of Textualism and judicial restraint are not represented in the Court’s recent decisions or actions.

Turing to the Court’s actions, Chief Justice Roberts’ recently began to criticize Obama in public. In Roberts’ mind, he probably thinks he is defending the integrity and power of the Court. However, in reality his actions make the Court look more partisan and political, thereby hurting its credibility. The wiser thing to have done is say nothing, and hope Obama’s “call out” is forgotten. Instead, the event has been resurrected and again occupies news headlines. And worse, Roberts is reminding the public of its controversial Citizens United decision again, a decision most Americans disagreed with and led to the belief that corporate money has even somehow made its way into the Supreme Court’s chambers.

In combination with Roberts’ public comments, the Court is increasingly deciding cases that reverse legislative decisions and Court precedent in the name of individual rights. I think this is the wrong message a conservative Court wants to send to the public. The Citizens United and the future McDonald v. Chicago (gun ban case) both reverse legislative decisions. Both the McCain-Feingold Act and any state or city gun bans are the result of political compromise, legislative decisions, and the democratic process. And the Roberts Court, from its “ivory tower”, is striking down these laws at a regular rate.

A conservative Court should limit its decisions to protecting individual rights, protecting states’ rights, and giving deference to the political process. Remember the Court can decide what cases it takes. The wiser choice would have been not to take the Citizens United case at all; however, after Heller the McDonald case is such a large national issue, I don’t know if the Court could, or should, avoid it. The Roberts Courts willingness to take on these cases is making the Court look like a group of nine individuals who impose their will on America, using whatever judicial interpretation that allows them to get to the result they want. This brands the Court as a political branch and undermines its credibility. More so, the Courts actions will likely further polarize the Court and encourage Presidents to appoint more extreme justices (left or right). The Court doesn’t need extremes; what it needs is a Justice like O’Connor, who was moderate, protected individual rights when needed, stood for states’ rights, and deferred to the legislative process.

-Scott Blake, Commenting on “Justice Roberts on The State of The Union”

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