The law is not perfect. This is a basic truth about all societies that are based upon concepts of law and order. However, today I read the most remarkable argument, which I will post in summary form from Talkingpointsmemo.com without alteration:
Thanks to John Roberts’ comments yesterday I suspect we’re about to go through another round of hand-wringing about how the Supreme Court needs to be more insulated from the political brawls of the day.
Before it begins in earnest, let me make a distinction that will be quickly lost. The courts should be independent and free of political taint, and I’d man the barricades shoulder to shoulder with Roberts to defend that principle. But there’s no good reason to insulate the courts from the rough and tumble of politics and the complex world we live in, protecting them like a fragile flower.
To the extent the Supreme Court has been demystified by modern media and contemporary politics, that’s been a good thing. To the extent that it has lost some its institutional authority, it need not look beyond its own marble walls for the cause.
With all due respect, this is shockingly wrong.
In a Republic, there is no King but the Law. This is an ancient principle at the root of the country. People may disagree about what the law should be; indeed, the entire Civil War can be summarized as a dispute about who shall lay down the law of the land, and how.
What President Obama did was not about “demystifying” the Supreme Court. It was not about afflicting the decisions of the Court with political taint, though this writer says on the one hand the Court should be free of such taint, yet on the other hand argues that had the Court simply made rulings in line with what the Democratic Party wanted, the Court would not be of such supposedly ill repute. Finally, what President Obama did was not removing the court’s insulation from the “rough and tumble of politics.”
What President Obama did was make the Court a public laughing stock in a setting where even the slightest response to this mockery and derision would be assaulted as interference with the noble practice of politics by mere judges. Indeed, with the case of Justice Alito, that is exactly what happened; and now, weeks later, Justice Roberts’ intervention (link at bottom) is being spun on Talking Points Memo as “Roberts Slams Obama,” an inappropriate perversion of the political order.
The point is this: the President attacked people who were expected to just stand there and take it, using the bully pulpit to bully, and using the gallery to emphasize the derision placed upon the Court for having defied the President’s political and personal beliefs in a matter of law. The President tarnished the majesty of the law, and sought to make politics king instead.
If a President wants to change a Supreme Court decision, let him pass a constitutional amendment. That the restrictions on corporate contributions were contrary to the First Amendment in principle was no secret; people simply argued that the political case behind it was so strong that it must be so. Once a party was wronged that actually had such narrow interests that it sued all the way to the Supreme Court rather than deferring to political reality, the court made the only decision the law, properly followed, favored. Yet clearly, there was a larger point to what the President did, and what Talking Points Memo is doing today: making the Court just another tarnished institution that need not be paid attention to, and legitimizing politics as the greater source of majesty.
I do not believe that this will resonate with the public at large; nor do I believe that it should. The law has never been perfect, but it has always been grand and great; its power is awesome and the respect given unto it, while not perfect either, is far greater than in tinpot dictatorships and countries where personal authority matters far more than the strict letter of the law, amounting to a principle of, “if no one stops me, it isn’t illegal.” If you will, “If the President does it, it is legal.” That is a principle that the United States never quite accepted; nor is it particularly ready to accept this idea now, as far as I can tell.
The law may be flawed, but it still has majesty. Flinging mud at the law and making a laughing stock of it may be rooted in deeply seated and entirely honest beliefs, but I do not see that it is wise big-picture politics. To change the law is a noble endeavor. To tear down the law itself, and a country’s embodiment of that law, and to blame that embodiment for having in essence tarnished itself by not making the “right” rulings, is simply destructive to society in its entirety.
For more information concerning the debate, and what TPM and its readers are saying about it, see for yourself without me as a middleman: http://tpmdc.talkingpointsmemo.com/2010/03/battle-over-citizens-united-case-leads-to-white-house-v-supreme-court-spat.php?ref=fpa