SOTU Meets SCOTUS

In the enumeration of the duties of the President, Article II, Section 3 of the Constitution says:

“He 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 ...”

In the years since George Washington gave the first State of the Union address (although it wasn’t called that until FDR used the term in 1934) it has remained each President’s choice to decide how to comply with this constitutional requirement.

Both Washington and Adams gave their addresses in person. Jefferson, undoubtedly aware that this constitutional provision was modeled after the British Monarch’s Address from the Throne, thought it too “kingly” for the executive to stand above the legislature and lecture it. His 1801 SOTU was dispatched in writing to Congress to be read by a clerk.

Jefferson’s precedent continued for 112 years until Woodrow Wilson, who felt no one could ever hear enough from him, including Wilson himself, resumed the SOTU delivery in person, and it has continued regrettably so since 1913.

I say “regrettably” because the SOTU has morphed from a marginally important housekeeping formality the Founders seemed to have intended into a “political pep rally” as Chief Justice John Roberts characterized it this week following a speech to the University of Alabama Law School.

Answering a law student's question about Obama’s SOTU criticism of the court, Roberts answered, “The 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."

Even more troubling than Obama’s pontifical intrusion into the affairs of SCOTUS was that his assertions were patently untrue. The Court’s decision in Citizens United v. Federal Election Commission did not overturn "a century of law" as Obama, apparently untroubled by the First Amendment, contended nor did it confer a new entitlement on foreign corporations in U.S. elections. The FEC is renowned for overreach, and this time got its hands slapped.

I was also troubled by the televised image of Charles Schumer, snarling and clapping almost in the face of the implacable justices. It bordered on intimidation – hardly the fodder for a Channel One civics class.

Obama isn’t the first President to have his panties wadded by the Supreme Court. In the tumultuous election of 1800 denying John Adams a second term as President, Adams used the interregnum to engage in judicial mischief leading to the landmark Marbury v. Madison of 1803. Thereby, Chief Justice John Marshall established the power of the heretofore neutered Court, making it the final arbiter of the constitutionality of laws passed by Congress and state legislatures.

President Andrew Jackson, a famous Indian fighter and an unrepentant Indian hater, was directed by the Court to consider the relationship between the United States and the Cherokees (who lived mostly in Georgia) as a relationship between nations in the case of Worcester v. Georgia. Jackson famously said, "John Marshall has made his decision; now let him enforce it!" Old Hickory wanted the Cherokee land because, among other things, gold had been discovered. His actions set in motion Indian removal which his successor, Martin van Buren, would carry out in what has become known as The Trail of Tears, one of the most sordid events in American history.

President Franklin D. Roosevelt, who considered the American presidency a notch above monarchical, attempted to pack the Court with six additional justices who would be more favorably inclined towards his New Deal adventures than the Court’s existing nine incumbents. His shenanigans failed in Congress and proved a political disaster for FDR by splitting the Democrat Party, reawakening the opposition, and undermining his second-term agenda.

As a life-long student of history, I believe that there has never been a generation like those men who engaged in the political debates of the 1780s and created the U.S. Constitution – one of the most remarkable documents in government, perhaps matched only by one signed in a meadow at Runnymede in 1215, the Magna Carta. They were intellectual giants compared to the political pygmies of both parties today. With the exception of Washington, who was poorly educated, most of the Founders were university-trained, able to read and write Greek and Latin fluently, and knowledgeable of all forms of government since recorded time.

In the late summer of 1787, the delegates to the Constitutional Convention were hard at work word-smithing the document. We know from Madison’s notes of the convention that on August 27 delegates discussed possible friction between the judicial branch and the other two.

John Dickinson of Delaware moved to insert in Article III the words "provided that they [Justices] may be removed by the Executive on the application by the Senate and House of Representatives."

James Wilson of Pennsylvania, reflecting on an incident that happened in the British Parliament, worried that "judges would be in a bad situation if made to depend on every gust of faction which might prevail in the two branches of our government."

Governor Edmund Randolph of Virginia opposed the Dickinson motion for the removal of federal judges fearing "weakening too much the independence of the judges."

Dickinson countered that he "was not apprehensive" that the other branches "constructed on such different principles, would improperly unite for the purpose of displacing a judge."

Dickinson was wrong. On January 27, 2010 a bloviating president provoked a puerile reaction among the Senate and a House of Representatives that did indeed "improperly unite for the purpose of displacing" Supreme Court justices. They physically united to jeer their disrespect for a co-equal branch of government.

When questioned by another Alabama student about the attendance of SCOTUS at SOTU speeches, Chief Justice Roberts answered, “I’m not sure why we’re there.” Nor am I. Other than respect, which certainly wasn’t returned in kind in January, there is no statutory reason for them to be there. Therefore, since the Obama SOTU of 2010 gave new meaning to the term “bully pulpit,” I believe the Court should follow the example of their colleague Justice Antonin Scalia, who hasn’t attended these charades in years, and stop going.

I also think the Chiefs of Staff for the Armed Services, who are compelled to be political capons in events like these, should also avoid the political dramaturgy that SOTU has become.

It might not be a bad idea to carry this further and recommend that the 435 Representatives and 100 Senators stay home where they won’t feel compelled by party politics to spring to their feet and bray like jackasses anymore.

And if a future president, including the current one, can’t accommodate the low regard that Jefferson held for the State of the Union address, and is instead convinced that the Republic would somehow become unhinged without his annual Sinaitic emanations, he could still come.

It wouldn’t be the first time a politician postured for C-SPAN cameras in an empty chamber.