by Jules Witcover

When George Orwell wrote in "Animal Farm" that "all animals are equal but some animals are more equal than others," he could have had the three American branches of government in mind.

That Orwellianism is suggested by Chief Justice John Roberts' recent comment on President Obama's first State of the Union message, in which the president criticized a Supreme Court decision. Cameras covering Obama's address caught Associate Justice Samuel Alito mouthing very visibly, "Not true," to the president's contention that the 5-4 ruling opened the door to unlimited corporate and union political contributions.

Last week Roberts, speaking at the University of Alabama Law School, defended Obama's right to criticize the court. But then he said the annual message "has degenerated into a political pep rally," adding: "I'm not sure why we're there." Attendance is not required, and in the past some justices have shown up only occasionally or not at all.

The Constitution's balance of federal powers among the executive, the legislative and the judicial branches has long been appraised in textbooks as a system affording co-equal stature. The legislature makes the laws but the executive enforces them and the judiciary rules on their legality -- thus each branch exerts a check on the other two, as in the kids' game rock-paper-scissors.

Yet in this one highly public annual exercise that brings the three branches together, it is the chief executive who holds center stage. He not only informs those in attendance and the national television audience of the health of the country but also usually prods the legislators to support his known agenda, often having new proposals in it.

In keeping with the partisan reality of recent years, the president's supporters rise, cheer and applaud while opposition party loyalists sit and often make the sound of a single hand clapping. Throughout this display, the members of the judicial branch either sit and applaud politely at politically innocuous statements, or keep their hands to themselves in inoffensive neutrality. The same is usually true of members of the military Joint Chiefs of Staff, in front seats along with the members of the court.

The justices are, indeed, a captive audience if they choose to attend, and most presidents have elected not to criticize their actions at this widely watched annual institution. But Obama apparently could not resist getting a few licks in for campaign finance reform at the court's expense.

It's unquestionably true also that presidents of both parties have turned the State of the Union address into a cheerleading exercise by putting the latest public heroes in the gallery, next to the first lady, and introducing them in what has at times disintegrated into a cheap stunt.

In any event, the public undoubtedly perceives the presidency to be "more equal" than the other two branches, and the State of the Union extravaganza only underscores that view.

Other more substantial developments support the more-equal stature of the modern presidency. Throughout the George W. Bush years particularly, learned government lawyers such as John Yoo -- he of the theory of the "unitary executive" -- held that a wartime president could do just about anything he damn well pleased.

Even now, with Obama in the Oval Office determined to bring change to the way Washington works, the legislative branch has shown little constructive initiative, instead focusing on blocking or limiting his main programmatic objective of major health-care reform. The question of which branch is "more equal" in this fight is unresolved so far.

As for the Court, Roberts told the Alabama law students of the State of the Union event: "There is the issue of the setting, the circumstances and the decorum." The image of having members of Congress "literally standing up, literally surrounding the Supreme Court, cheering and hollering while the court, according (to) the requirements of protocol, has to sit there expressionless," he said, "is very troubling."

Roberts obviously prefers to establish the court's co-equality from the bench, and so may be absent, as well as other justices, the next time Obama presents his State of the Union to Congress.


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On Our Co-Equal Branches | Jules Witcover

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