I wouldn’t blame Chief Justice John Roberts or the other members of the United States Supreme Court at all if they declined to attend future State of the Union Addresses. President Obama seriously broke protocol in his January 27, 2010, Address by disrespectfully dressing down the Justices over their recent campaign free speech decision in Citizens United v. FEC in which they struck down part of the Bipartisan Campaign Reform Act (“BCRA”).

As the Chief explained his discontent in a recent speech to law students at the University of Alabama – “Anybody can criticize the Supreme Court . . . we do it in our dissents . . . . I think people should feel perfectly free to criticize what we do . . . . [O]n the other hand . . . there is the issue of the setting, the circumstances, and the decorum . . . . [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, and it does cause me to think whether or not it makes sense for us to be there, to the extent the State of the Union Address has degenerated into a political pep rally, I’m not sure why we’re there.”

In front of a cheering and whooping pack of democrats, President Obama condescendingly looked down on the members of the third of our three co-equal branches of government, and for the first time in modern history took a direct shot at the Court for . . . doing their job – interpreting and enforcing the Constitution. I see only slight difference between the President’s breach of protocol toward the Court and Congressman Joe Wilson’s plainly inappropriate call of “you lie” not so long ago during the President’s address to Congress regarding health care.

In case you missed it, the President said the following during his State of the Union Address – "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.” I guess the “wrong” that the President was referring to was the First Amendment’s Free Speech Clause which plainly declares that “Congress shall make no law . . . abridging the freedom of speech, or of the press.”

But in truth, the only “wrongs” in all of this were President Obama’s. The first was his uncouth display of disrespect for the Justices of the Supreme Court, to their faces in the House Chamber in front of all of Congress assembled, and the Nation via television. No President in modern history has ever shown such direct and condescending disrespect to the Court in a State of the Union Address.

When Presidents in the past have stated direct disagreement with a specific decision of the Court they have not done so in a State of the Union Address. And, when Presidents have touched on issues pertinent to the Court in a State of the Union Address, they have done so in a most general, non-confrontational, and respectful manner. None have ever presumed to lecture the Court on their alleged mistakes in constitutional interpretation – telling them that they got it “wrong.”

In his 1937 State of the Union Address, on the verge of his court packing plan, even FDR showed more respect for the Court than did President Obama. Yes FDR did speak in criticism of the Supreme Court, but he did so only in generalities, he did not reference any particular case or decision by the court, and he did not presume to lecture the Court on constitutional law. FDR stated only as follows:

“During the past year there has been a growing belief that there is little fault to be found with the Constitution of the United States as it stands today. The vital need is not an alteration of our fundamental law but an increasingly enlightened view with reference to it. Difficulties have grown out of its interpretation; but rightly considered, it can be used as an instrument of progress and not as a device for the prevention of action. . . . It is worth our while to read and re-read the preamble of the Constitution and the article I thereof which confers the legislative powers upon the Congress of the United States. It is also worth our while to read again the debates in the Constitutional Convention of 150 years ago. From such reading, I obtain the very definite thought that the members of that Convention were fully aware that civilization would raise problems for the proposed new Federal Government, which they themselves could not even surmise; and that it was their definite intent and expectation that a liberal interpretation in the years to come would give the Congress the same relative powers over new national problems as they themselves gave Congress over the national problems of their day. In presenting to the Convention the first basic draft of the Constitution, Edmund Randolph explained that its purpose ‘to insert essential principles only, lest the operation of government should be clogged by rendering those provisions permanent and unalterable which ought to be accommodated to times and events.’ With a better understanding of our purposes, and a more intelligent recognition of our needs as a nation, it is not to be assumed that there will be prolonged failure to bring legislative and judicial action into closer harmony. Means must be found to adapt our legal forms and our judicial interpretation to the actual present national needs of the largest progressive democracy in the modern world.”

Then after extolling the powers of the Legislative and Executive branches of government, FDR concluded – “The judicial branch also is asked by the people to do its part in making democracy successful. We do not ask the courts to call nonexistent powers into being, but we have a right to expect that conceded powers or those legitimately implied shall be made effective instruments for the common good. The process of our democracy must not be imperiled by the denial of essential powers of free government.”

President Regan spoke on the issues of abortion and school prayer during each of his last 4 State of the Union Addresses. But in no Address did President Regan ever mention the Court, ever mention Roe v. Wade or the name of any school prayer decision, and never did he presume to lecture the Court on constitutional law. Instead, President Regan left the Court out of his remarks and called upon Congress and the People to change the Nation’s view of the unborn and school prayer –

(1984) “During our first 3 years, we have joined bipartisan efforts to restore protection of the law to unborn children. Now, I know this issue is very controversial. But unless and until it can be proven that an unborn child is not a living human being, can we justify assuming without proof that it isn't? No one has yet offered such proof; indeed, all the evidence is to the contrary. We should rise above bitterness and reproach, and if Americans could come together in a spirit of understanding and helping, then we could find positive solutions to the tragedy of abortion.”

(1985) “[N]o citizen need tremble, nor the world shudder, if a child stands in a classroom and breathes a prayer. We ask you again, give children back a right they had for a century and a half or more in this country.”

(1987) “[L]et's stop suppressing the spiritual core of our national being. Our nation could not have been conceived without divine help. Why is it that we can build a nation with our prayers, but we can't use a schoolroom for voluntary prayer? The 100th Congress of the United States should be remembered as the one that ended the expulsion of God from America's classrooms.”

(1988) “Well, now we come to a family issue that we must have the courage to confront. Tonight, I call America—a good nation, a moral people—to charitable but realistic consideration of the terrible cost of abortion on demand. To those who say this violates a woman's right to control of her own body: Can they deny that now medical evidence confirms the unborn child is a living human being entitled to life, liberty, and the pursuit of happiness? Let us unite as a nation and protect the unborn with legislation that would stop all Federal funding for abortion and with a human life amendment making, of course, an exception where the unborn child threatens the life of the mother. Our Judeo-Christian tradition recognizes the right of taking a life in self-defense. But with that one exception, let us look to those others in our land who cry out for children to adopt. I pledge to you tonight I will work to remove barriers to adoption and extend full sharing in family life to millions of Americans so that children who need homes can be welcomed to families who want them and love them.”

President George W. Bush spoke critically of the Supreme Court’s decision regarding the rights of Guantánamo Bay prisoners, but he did this during a press conference when the members of the Court were not present, not during a State of the Union Address while they were present.

President Obama’s second wrong was his complete nescience of the law. Regardless of the Court’s decision in Citizen’s United, Section 441(e) of the BCRA bans contributions and expenditures by “foreign national[s]” in elections. Furthermore, in it’s Opinion in Citizens United the Court strongly hinted that it would recognize that government has “a compelling interest in limiting foreign influence over our political process” if Section 441(e) was ever challenged. The Court could not utilize this compelling government interest in Citizen’s United to save Section 441(b) of the BCRA, however, because that Section banned all corporate speech regardless of corporate ownership (domestic or foreign).

It is not correct for the President to directly challenge the Court in a setting in which the Justices have to sit there with their hands in their laps and their faces blank. They can't be seen as taking sides – they may have to decide some of the issues the President discusses some day. As Justice Scalia has said the Justices look like bumps on a log. And that's why some justices won't go to the State of the Union address. And, I wouldn’t blame the Chief or any other Justice if they did not come back again.