Among the messages Attorney General Eric Holder had for graduates of Morgan State University this weekend was this one: Supreme Court Chief Justice John Roberts' views on race and politics are misguided.
What the graduates may not know is that this is simply the latest volley between the administration of President Obama and Roberts' Supreme Court.
Holder was the historically black school's commencement speaker on Saturday, using the opportunity to discuss how American racial politics have evolved in the precisely sixty years since the Brown v. Board of Education decision. "Chief Justice John Roberts has argued that the path to ending racial discrimination is to give less consideration to the issue of race altogether," Holder said, referring to Roberts' majority opinion in a 2007 ruling that scaled back diversity programs in local schools. But, Holder continued, "discrimination does not always come in the form of a hateful epithet or a Jim Crow-like statute. And so we must continue to take account of racial inequality, especially in its less obvious forms, and actively discuss ways to combat it."
The administration and the Court have been at odds nearly since Obama was first sworn in — a swearing-in that, you might remember, required a do-over.
The Alito incident
At his State of the Union address in January 2010, Obama criticized the Court as it sat in the audience. Referring to the Citizens United decision, which removed certain prohibitions on campaign financing, Obama stated that the case would "open the floodgates for special interests, including foreign corporations, to spend without limit in our elections." Justice Samuel Alito, a member of the conservative bloc on the Court reacted visibly, mouthing "not true."
In an interview a few months later Roberts called Obama's critique "very troubling," given the surrounding environment. The annual speech, in the chief justice's estimation, had become little more than a "political pep rally." Experts that who spoke with The Post at the time agreed that Obama's comments were unusual. "I can't ever recall a president taking a swipe at the Supreme Court like that," University of Texas Supreme Court expert Lucas A. Powe Jr. said.
Obama wasn't done. In a 2012 interview with Rolling Stone, Obama criticized Roberts' majority opinion on the Affordable Care Act, which determined that the health care law could be upheld as a tax. Obama criticized that interpretation, suggesting that Roberts "made a decision that allowed him to preserve the law but allowed him to keep in reserve the desire, maybe, to scale back Congress' power" to regulate interstate commerce.
Court conservatives fight back
Both Roberts and other members of the Court have not been shy about their critiques of the president. During verbal arguments on the case that struck down the Defense of Marriage Act, Roberts dismissed Obama's strategy on the law. "If he has made a determination that executing the law by enforcing the terms is unconstitutional," Roberts said, "I don’t see why he doesn’t have the courage of his convictions" and simply not enforce it. (The administration's lawyer's response? Obama continued to enforce the law "out of respect for the Congress that enacted the law and the president [Bill Clinton] who signed it.")
Oral arguments are not an unusual time for such critique to appear. Justice Antonin Scalia repeatedly challenged the government lawyers during the Obamacare case, as Bloomberg documented at the time. Scalia called the government's position in that case — that the law could be implemented under the interstate regulatory powers of the Commerce Clause — "extraordinary." During arguments on Arizona's controversial immigration law, Scalia asked the solicitor general if "we have to enforce our laws in a manner that will please Mexico."
Justice Clarence Thomas doesn't usually ask questions during oral arguments. But in an interview in April 2013, he criticized President Obama indirectly, as Fox Nation reported. "I’ve always thought there would be black coaches, heads of universities," Thomas said. "Maybe again as I said I’m naive but the thing I always knew is that it would have to be a black president who was approved by the elites and the media because anybody that they didn’t agree with, they would take apart."
On particular issues, if not in personal terms, even liberal members of the Court have criticized the administration. When the Court debated Obama's 2012 recess appointments in January of this year, the liberals on the Court appeared to agree that Obama had overstepped his authority. (A decision in that case, NLRB v. Noel Canning, has not been released.)
Tension between the Court and the White House is a natural part of the constitutional separation of powers which Obama himself referred to in his Citizens United critique that prompted Alito's visible frustration. It's the decorum that's generally seen as having eroded, from Scalia's temper to that Obama "pep rally." Of course, Alito and Roberts had reason to be frustrated with the president even before Obama was sworn in. When each was nominated to the bench, then-senator Obama voted against them.