Obama's shout out to the Supreme Court

My favourite moment in the bloom is off the rose State of the Union address was when President Obama departed from the conventional veneration of Supreme Court Justices as if they were vestal virgins guarding the Republic.  Umpires calling balls and strikes John Roberts claimed in his confirmation hearings - denying the obvious ideological divides that often determine outcomes.


Every first year law student in America is steeped in the contrary idea.  The dominant perspective - Legal Realism -  takes its cue from Oliver Wendell Holmes, Jr., who in his famous 1881 lectures The Common Law wrote

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.

I don't think any President has confronted the Justices this way.  Of course Al Gore did not get the chance.  Obama, face to face, bluntly if impotently said:

It's time to put strict limits on the contributions that lobbyists give to candidates for federal office. Last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that's why I'm urging Democrats and Republicans to pass a bill that helps to right this wrong. 

Impotent, because, as I wrote last week, Justice Kennedy warned the Congress that the Court majority would not be reticent about overturning legislation its majority felt incompatible with its view of the Constitution.  Their view was simple: artificial persons (corporations) are like real people.  They have rights including the right to speak anytime anyplace about whatever they want (constrained minimally by the duty not to waste corporate assets).   Justice Kennedy declared for the 5-4 majority:

Legislatures may have enacted bans on corporate expenditures believing that those bans were constitutional. This is not a compelling interest for stare decisis. If it were, legislative acts could prevent us from overruling our own precedents, thereby interfer-ing with our duty “to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

 As Rutgers-Camden law professor Robert Williams said of legislation - one day it's the law of the land, the next moment it's waste paper.