Dahlia Lithwick writes that “the president has every right to criticize the court, and the justices have every right to appear annoyed.” So far, so good. What’s inappropriate, in her view, was not Obama’s conduct or Alito’s but rather Chief Justice Roberts’s. She faults Roberts for “lobbing long-distance partisan attacks at Congress and the president” and lacking “the courage to insult” Obama to his face. So it’s okay for justices to respond to criticism with facial expressions but not with words? How does that make any sense?
Ruth Marcus writes that Roberts is a “big crybaby” — either for preferring not to be criticized in a forum where he cannot respond, or for responding later. She concludes that for the conservative justices to stay away from future State of the Union addresses would be “a mistake” — although she identifies no reason for thinking that the justices have any duty to be there, nor even any good that their presence serves. She concludes, “If conservative justices boycott a Democratic president’s State of the Union address, who, then, will be politicizing the court?” If by “politicizing the court” she means making the Court the subject of political controversy, then the answer is that both the president and the justices will have done so — but by Marcus’s own (correct) argument, that’s alright, since “the court is and should be part of the conversation.” If, on the other hand, by “politicizing the court” she means joining that conversation in some improper way, then the answer is that nobody will have done so; and she doesn’t even try to explain why she holds otherwise.