WASHINGTON — The moment lasted about 20 seconds. But its political reverberations have endured for a year and exemplify today's knotty confluence of law, politics and public perception. At last year's State of the Union speech Jan. 27, with six Supreme Court justices in attendance, President Obama denounced a recent campaign-finance ruling, saying it reversed a century of precedent and warning that it would "open the
floodgates" for corporate spending on elections. Justice
Samuel Alito shook his head and mouthed "not true." That tense moment has been viewed on youtube.com more than 650,000 times in the past year. It was singularly controversial but not the only headline-grabbing interaction between members of the political branches and the Supreme Court in the past twelve months.
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| President Obama greets Supreme Court Chief Justice John Roberts before he delivers the State of the Union Address at the U.S. Capitol last Jan. 27 |
A series of events, most recently Justice
Antonin Scalia's acceptance of an invitation to speak to Tea Party members, has made clear that against the backdrop of an increasingly polarized Washington and the 24-hour media frenzy, interactions between justices and the two elected branches have become more politicized. "It's a significant phenomenon," says
University of Pittsburgh law professor Arthur Hellman. "It wasn't happening 20 years ago." Court scholars say the trend could lead to public doubts about the ability of judges to be impartial and above politics, particularly when highly charged disputes over health care, gay rights and immigration are moving through the judiciary. "It's important not to overemphasize it because we don't know where it's going to lead,"
Hellman says. "But the totality could be to reduce the sense that there is something special about the courts, that they are above politics, above commerce, above other sectors of society today."
A factor that could exacerbate that view: The Supreme Court, for the first time in modern history, is split 5-4 along political not just ideological lines. The five conservatives were appointed by Republican presidents, the four liberals by Democratic presidents. Until President Obama's recent appointments of Justices
Sonia Sotomayor and
Elena Kagan, two justices on the liberal side
David Souter and
John Paul Stevens were GOP appointees. At other times, some Democratic appointees such as Byron White, named by
John F. Kennedy regularly voted on the conservative side. "It only heightens the frenzy when it looks like a party conspiracy," says Barry Friedman, a New York University law professor who has studied the intersection of public opinion and the law.
Friedman says the recent series of judicial-political clashes could have "a cumulative effect" but that probably would become evident only after a major ruling, such as might occur in a high court test of the constitutionality of the 2009 Obama-sponsored health care law. "Most of what the public cares about is outcomes," Friedman says. "You can have all this partisan frenzy, but if the court is not doing anything dramatic on the law, it's not going to matter."
Yet it is plain the political atmospherics around the court have changed. Even ceremonial gestures involving politicians generate attention. When Chief Justice
John Roberts swore in aides to new House Speaker John Boehner, R-Ohio, this month, Politico reporter David Rogers likened Roberts to "a high priest of the right." The New York Times editorial page criticized Scalia in mid-December for accepting the invitation to speak to the House Tea Party caucus Monday declaring it "the kind of organization no justice should speak to." The Los Angeles Times editorial page disagreed, saying, "Let Scalia speak."
Professor Hellman does not fault Scalia, a book author and former law professor, for wanting to speak to any congressional audience. But Hellman says, "To the extent that people are talking about judges the way they talk about politicians, it does feed into the new climate."
Health care issue
There have been legendary political clashes between presidents and the Supreme Court, notably President
Franklin Roosevelt's failed effort in 1937 to "pack the court." He hoped to add new justices for every sitting justice over age 70 and gain votes to uphold his New Deal initiatives. In contrast, today's phenomenon arises mostly from extracurricular incidents in a polarized climate from which the judiciary is not exempt. Consider the backdrop to the looming fight over the constitutionality of Obama's health care law. Of the three lower-court judges who have ruled on it, the two appointed by a Democratic president upheld the measure; the one appointed by a
Republican struck it down. "That reinforces the perception that politics and adjudication aren't all that different," Hellman says.
New York Times columnist
David Brooks, a moderate conservative, wrote this month about the court fight over the health care law: "Future decisions are likely to break down on partisan lines. Given the makeup of the Supreme Court, this should concern the law's defenders." The justices seek to stay above the partisan fray. They do not allow cameras in their courtroom. They talk of inhabiting a world apart. As Justice
Anthony Kennedy explained to a Senate committee in 2007 as he opposed televising Supreme Court oral arguments, "We have a language ... and ethic and etiquette, a formality, a tradition that's different than the political branches; not better, not worse, but different." Individual justices circulate in public venues but largely on their own terms, promoting their books, traveling to law school campuses, taking overseas trips. Yet in today's 24/7 media world, they get more coverage — and more scrutiny than in the past.
Justice Stephen Breyer, a Clinton appointee who since last fall has appeared on more than a dozen radio and television shows to promote his latest book, drew criticism when he responded to George tephanopoulos on
Good Morning America about free speech rights and the burning of the Quran.
In his somewhat wandering answer, Breyer raised a different scenario involving falsely shouting fire in a crowded theater and suggested to some critics at least that Quran burning could similarly be speech deemed unconstitutional.
That notion would contradict past rulings protecting protest speech such as flag-burning that causes no real danger, and in later interviews, Breyer tried to make clear he was not suggesting the high court should strike down
Quran burning. Still, some conservative voices, including the Washington Times editorial page, criticized Breyer's linking of Quran burning with shouting fire in a theater.
In turn, liberal columnist
Dahlia Lithwith, writing for the online magazine Slate, said Breyer's musings did not "amount to some kind of dastardly liberal anti-free-speech conspiracy." "If they signify anything," she wrote, they "illustrate the danger of allowing Supreme Court justices to go on live television for their book tours."
People's faith
The Supreme Court traditionally ranks higher in public opinion than Congress or the president. National studies suggest the public typically does not focus on — or even know the names of — individual members of the high court. Last August, around the time that Kagan was sworn in, the Pew Research Center wrote in a report titled "The Invisible Court," "While legal scholars analyze Kagan's possible impact on the 'Roberts court,' most Americans have no idea who '
Roberts' is. In Pew Research's latest political knowledge quiz, just 28% correctly identified John Roberts as chief justice — from a list that included Harry Reid, Thurgood Marshall and John Paul Stevens." It would be difficult to detect any diminishment of public regard for the judiciary at this point, says Barbara Perry, a senior fellow at the
University of Virginia's
Miller Center of Public Affairs, who has written a book about the Supreme Court's image. She chalks up recent controversies to "the 24/7 media frenzy," as well as justices being caught unaware by a climate in which their comments can be amplified on the Internet.
"Judges may feel that they are staying out of politics," Perry says, "but what they say now can be picked up and spread across the country like a wildfire instantaneously." She says the risk to the court would be in a lessening of people's regard for the institution and faith that it is a neutral decision-maker. "That's what the court needs to maintain," she says, "because that's where it gets its legitimacy, from people's faith in it."
