JURIST Guest Columnist William G. Ross of Cumberland School of Law, Samford University, says recent comments by Chief Justice Roberts responding to President Obama's criticism of the Supreme Court's Citizen's United ruling were not disrespectful toward the institutions of Congress or the presidency or toward any particular person….

Chief Justice Roberts’ comments last week concerning President Obama’s controversial criticism of the Supreme Court’s campaign financing decision in his State of the Union address have generated criticism and controversy of their own. Some commentators believe that Roberts expressed excessive sensitivity toward criticism, while others have questioned whether he should have made any remark at all about an essentially political issue. Taken in context, however, Roberts’ remarks were appropriate for exactly the same reason that, as I explained in a JURIST column last month, Obama’s criticism of the Court was proper: the remarks of both Obama and Roberts were fair and reasonable and neither threatened judicial independence or integrity, or breached appropriate boundaries involving separation of powers.

Responding to a question from a student during an appearance at the University of Alabama School of Law on Tuesday, Roberts avoided any direct criticism of the President, whom he did not name. His remarks appear have been directed mostly and perhaps solely at the behavior of members of Congress, many of whom stood and cheered in the shadow of the silent and seated Justices after Obama forcefully criticized Citizens United v. Federal Election Commission, in which the Court by a five to four vote nullified certain limitations on spending by corporations in political campaigns.

After acknowledging that “anybody can criticize the Supreme Court,” Roberts added that “[o]n the other hand, there is the issue of the setting, the circumstances and the decorum.” According to Roberts, “[t]he image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the Court — according to the requirements of protocol — has to sit there expressionless, I think is very troubling.” Roberts remarked that “[t]o the extent that it has degenerated into a political pep rally, I’m not sure why we’re there” at State of the Union addresses.

The controversy that Roberts’ remarks has generated provides a reminder that judges, especially U.S. Supreme Court justices, need to be very circumspect in their public comments about any subject, particularly public affairs. Judicial conduct codes, including the Code of Conduct for United States Judges, prohibit judges from making public comment about the merits of any matter pending or impending in any court. Canons in these codes also require judges to uphold the integrity and independence of the judiciary and to avoid impropriety and the appearance of impropriety in all activities. These canons imply that a judge should refrain from any public comment that might suggest that they have pre-judged any legal issue, even ones that have not come before their court. They also imply that judges should steer clear of any political controversy in order to avoid any appearance that their decisions are influenced by partisan considerations. The Code of Conduct for United States Judges states that while judges “may speak, write, lecture, and teach on both law-related and nonlegal subjects,” a judge “should not participate in extrajudicial activities that detract from the dignity of the judge’s office” or “reflect adversely on the judge’s impartiality.”

Roberts did not transgress those standards in his remarks this week. Since he spoke only in response to a question than in a prepared statement, he did not deliberately interject himself into the controversy over Obama’s statement about Citizens United. His expressions of irritation did not transgress the bounds of dignity, although they may have teetered on the edge. Just as Obama’s remarks about Citizens United did not express any disrespect for the Court as an institution or encourage any extra-constitutional defiance of the Court’s decision, Roberts’ remarks this week were not disrespectful toward the institutions of Congress or the presidency or toward any particular person.

Moreover, Roberts said nothing that could have raised questions about his partiality concerning any issue that might come before the Court. Indeed, Roberts firmly refused several times during the question and answer session to respond to queries about issues that the Court adjudicates or might adjudicate, including the scope of the Ninth and Tenth Amendments, and problems arising from the spiraling costs of state judicial election campaigns.

Roberts’ appearance this week at the University of Alabama is an example of how Supreme Court justices can educate the public about the judicial process. During recent decades, Justices often have met with students, lawyers, and various civic groups to discuss a multitude of issues and subjects, including methods of constitutional interpretation, the process by which the Court selects and decides cases, and the Court’s history. These public appearances have served an important educative function and almost certainly have enhanced public respect for the Court as an institution.

All of the Justices have exhibited appropriate discretion in the vast majority of their public comments. When confronted with questions that would require them to comment on issues that might come before the Court or to speak about sensitive political issues, the Justices usually have not hesitated to decline to comment.

Roberts’ musing about whether the Justices should continue to attend State of the Union addresses is an example of the interesting issues that judges can raise when they speak in public, and his doubts about the value of such attendance deserve further consideration.

Ever since President Wilson in 1913 restored the custom of delivering the State of the Union address in person to a joint session of Congress, most members of the Court have attended nearly all of the addresses. The most notable exception occurred in 1937, when none of the Justices attended because they knew or anticipated that President Franklin D. Roosevelt would criticize the Court for its invalidation of New Deal legislation. In our own time, Justice Clarence Thomas has absented himself from State of the Union addresses because he contends that they have become too partisan. Justice Antonin Scalia also has avoided them, as did former Justice David H. Souter.

The State of the Union speech provides a unique opportunity for all three branches of the federal government to come together at one place and at one time. This annual convocation of the nation’s principal executive, legislative and judicial officials symbolizes both the unity of the federal government and the separation of its branches. But while there may be good reason to include the Justices in the joint session of Congress, there is no reason why they need to be present.

Indeed, the Constitution seems to pre-suppose their absence. Section 3 of Article II of the Constitution states that the President “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.” The Framers therefore contemplated that the President’s message would be a communicatio
n between the President and Congress rather than any communication to both the Congress and the Court. Although the language of the Constitution should not bar Congress from extending invitations to the Justices to attend the President’s address, their attendance definitely is not part of their official constitutional roles or duties.

When legislators invite Justices to attend a joint session of Congress, they should not demonstrate disrespect toward the jurists. Although Obama properly used the “bully pulpit” of his State of the Union address to call attention to his objections to a very important judicial decision and to encourage Congress to enact legislation to ameliorate some of its effects, members of Congress did not need to pop out of their seats and erupt into applause in the presence of six Justices, including several who voted to strike down the campaign finance provisions. It is understandable that Roberts did not welcome the boisterous “pep rally” that Obama’s remarks provoked among members of Congress.

Since presidents rarely criticize Supreme Court decisions in their State of the Union addresses, there is little reason for Roberts or other Justices to fear that they will suffer again any time soon the discomfort that they may have experienced during this year’s State of the Union address. Indeed, their absence from next year’s address in the wake of this year’s controversy could suggest that they were unduly sensitive toward criticism or stir rumors that they bore some kind of animosity against Obama. Let’s therefore hope that Roberts and some Associate Justices attend the State of the Union address again at least one more time.

William G. Ross is a professor of law at the Cumberland School of Law of Samford University. His publications include various studies of extra-judicial speech, separation of powers, and the relationship between the Supreme Court and public opinion. His website is www.williamgeorgeross.com.
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