I am both surprised and bemused at Chief Justice Roberts’ criticism of President Obama in a question and answer session with students at the University of Alabama School of Law last week. The Chief Justice said that Obama’s criticism of the Court’s recent ruling in the Citizens United case (in which the Court struck down a 100 year old campaign finance law) during his state of the union address was “very troubling.” It is not unusual for a president to criticize a Supreme Court decision. Both President Bushes and President Reagan repeatedly attacked the Court’s holding in Roe v. Wade that women have a constitutional right to choose an abortion. Richard Nixon ran for president on an anti-Warren Court platform. Franklin Roosevelt accused the Court of being out of touch when it struck down key New Deal measures. Indeed, Roberts conceeded that it was permissible for the president to criticize the Court, saying that he just didn’t think the state of the union address was the appropriate format for such critique.
What is highly unusual, if not unprecedented, is for a Supreme Court Chief Justice to criticize the President for his stance on a Supreme Court opinion. While it is appropriate for members of the political branches to criticize the Court, the Court is supposed to be insulated from politics. Others have accused Roberts of whining, but I am most concerned about the political overtones of Roberts’s remarks. Most likely, like his colleague Samuel Alito, Justice Roberts just does not like being criticized to his face. But given that the Citizens United opinion will almost certainly benefit the party of the President that appointed him, Justice Roberts should be a little more circumspect before he allows himself to be drawn into what is really a political, and not a judicial, debate.