Alito: Not True

In last night’s State of the Union speech, President Obama called out the Supreme Court’s decision overturning corporate and union spending limits, saying it “reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.” Associate Justice Samuel Alito shook his head and appeared to mouth “Not true.”

Naturally, the moment is causing quite a bit of controversy because Justice’s rarely speak out about their decisions and have a tradition during SOTU speeches of sitting statue-like, not reacting at all to the president’s words.

Politico reports,

Rep. Anthony Weiner (D-N.Y.) was glad the president called out the Supreme Court.  “He [Alito] deserved to be criticized, if he didn’t like it he can mouth whatever they want,” Weiner said. “These Supreme Court justices sometimes forget that we live in the real world. They got a real world reminder tonight, if you make a boneheaded decision, someone’s going to call you out on it.”

But one conservative legal expert took sides with Alito — at least on the substance of Obama’s comments. “The President’s swipe at the Supreme Court was a breach of decorum, and represents the worst of Washington politics — scapegoating ‘special interest’ bogeymen for all that ails Washington in attempt to silence the diverse range of speakers in our democracy,” said Bradley A. Smith, chairman of the Center for Competitive Politics, in The Corner blog on Nationalreview.com.

John Aravosis is not amused:

Highly inappropriate for Alito to do this. You’ll notice the Sup Ct doesn’t even clap when the president enters. They are not supposed to respond to anything, lest it show bias. Highly inappropriate. Alito’s “You Lie!” moment

Except that the Joe Wilson “You lie” incident was a loud interruption, not a silent protest.

Further, while Wilson reasonably had a difference of opinion about the bill in question than Obama, there’s little question but that Obama was stretching the truth about Citizens United. Veteran NYT Supreme Court reporter Linda Greenhouse takes an evenhanded approach:

Supreme Court justices usually make for an awkward sight at the State of the Union speech, because they sit stony-faced and never clap or cheer.  Some members of the court dislike the exercise so much that they never attend. Justice Sotomayor’s predecessor, David H. Souter, never did. For several years, Justice Breyer attended alone.

This time, Justice Alito shook his head as if to rebut the president’s characterization of the Citizens United decision, and seemed to mouth the words “not true.” Indeed, Mr. Obama’s description of the holding of the case was imprecise. He said the court had “reversed a century of law.”

The law that Congress enacted in the populist days of the early 20th century prohibited direct corporate contributions to political campaigns. That law was not at issue in the Citizens United case, and is still on the books. Rather, the court struck down a more complicated statute that barred corporations and unions from spending money directly from their treasuries — as opposed to their political action committees — on television advertising to urge a vote for or against a federal candidate in the period immediately before the election. It is true, though, that the majority wrote so broadly about corporate free speech rights as to call into question other limitations as well — although not necessarily the existing ban on direct contributions.

But this was a populist night and the target was irresistible. There are a variety of specific proposals floating around to address the Citizens United decision. The president offered no specifics and did not endorse any of them. Just as the decision doesn’t lend itself to a sound bite, neither do the fixes.

AllahPundit summarizes the outrage against Alito thusly:  “When you hear the president of the United States demagoging the First Amendment, you sit there and you take it, son.”

That’s about right.  Presidential bashing of Supreme Court decisions they don’t like is hardly unprecedented.  But Obama’s use of a state address to do it was unseemly. Georgetown lawprof Randy Barnett:

In the history of the State of the Union has any President ever called out the Supreme Court by name, and egged on the Congress to jeer a Supreme Court decision, while the Justices were seated politely before him surrounded by hundreds [of] Congressmen? To call upon the Congress to countermand (somehow) by statute a constitutional decision, indeed a decision applying the First Amendment? What can this possibly accomplish besides alienating Justice Kennedy who wrote the opinion being attacked. Contrary to what we heard during the last administration, the Court may certainly be the object of presidential criticism without posing any threat to its independence. But this was a truly shocking lack of decorum and disrespect towards the Supreme Court for which an apology is in order. A new tone indeed.

And Alito’s reaction was quite restrained, indeed.

Dan Riehl and Glenn Reynolds both reckon this will be the top story coming out of the SOTU and thus step on Obama’s intended message (whatever that was).   Certainly, it’s what the blogosphere is talking about.  Thus far, however, it doesn’t seem to have caught on with the mainstream press.  (Greenhouse’s piece is on a NYT blog.)

UPDATEGlenn Greenwald offers the most thoughtful case against Alito.  It’s long but the following excerpts will give you the gist:

[It]was a serious and substantive breach of protocol that reflects very poorly on Alito and only further undermines the credibility of the Court.  It has nothing to do with etiquette and everything to do with the Court’s ability to adhere to its intended function.

There’s a reason that Supreme Court Justices — along with the Joint Chiefs of Staff — never applaud or otherwise express any reaction at a State of the Union address.  It’s vital — both as a matter of perception and reality — that those institutions remain apolitical, separate and detached from partisan wars.  The Court’s pronouncements on (and resolutions of) the most inflammatory and passionate political disputes retain legitimacy only if they possess a credible claim to being objectively grounded in law and the Constitution, not political considerations.

[…]

On a night when both tradition and the Court’s role dictate that he sit silent and inexpressive, he instead turned himself into a partisan sideshow — a conservative Republican judge departing from protocol to openly criticize a Democratic President — with Republicans predictably defending him and Democrats doing the opposite.  Alito is now a political (rather than judicial) hero to Republicans and a political enemy of Democrats, which is exactly the role a Supreme Court Justice should not occupy.

Incidentally, while Greenwald is a progressive and no fan of Alito, he’s actually written defending Citizens United.

While I generally agree with Greenwald on the matter of judicial temperament and value of preserving the (frankly, false) illusion that Supreme Court Justices are impartial caretakers of the Constitution rather than political actors, it seems that we can reasonably grant an exception in the case of cases on which the Court has already ruled.  Alito has already told us what he thinks of the issues involved in this particular case in controversy by signing his name to Justice Kennedy’s longish opinion.  Just as  I would have no problem with the dissenting Justices reiterating the rationale behind their dissent, I’m fine with Alito objecting to a blatant mischaracterization of his ruling.

Certainly, time, place, and manner are important considerations.   And the SOTU assembly isn’t a place where Justices usually speak their mind on these matters.  But Alito’s mild and inaudible reaction to being publicly called out — and disingenuously at that — by the president is quite reasonable.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Franklin says:

    Ms. Greenhouse pretty much nails it.

  2. sam says:

    Dan Riehl and Glenn Reynolds both reckon this will be the top story coming out of the SOTU and thus step on Obama’s intended message (whatever that was). Certainly, it’s what the blogosphere is talking about.

    Almost guarantees it’ll be nolle prossed by the electorate at large.

  3. yetanotherjohn says:

    So we have two unprecedented events. A president urging congress to go against the constitution in the SOTU by calling out the supreme court and a justice quietly responding to a lie told by the president as he criticized the court and its decision.
    Greenwald would have an excellent case if Alito had responded to a policy issue like health care. If Alito had responded to a mater likely to come under judicial revue such as the decision to mirandize the panty bomber after 50 min of questioing, he would have been in the wrong. I could even make the case that he shouldn’t react to a call for congress to subvert a constitutional ruling.
    But what Alito did was respond to a question of fact. If the cameras had not been on him, no one would have noticed his response.
    While you can question the decorum of the president and the justices action, at the end of the day the matter at hand protects them both. Obama can say what he likes about the ruling, even if what he says is a lie. Alito can also express his opinion about the lie.

  4. PD Shaw says:

    My question to the President would be whether he’d read the nearly 200 pages of decision published last week? If yes, don’t you have better things to be doing right now? If no, are there any books or movies you haven’t seen you wish to comment on?

  5. Zelsdorf Ragshaft III says:

    I wonder who is more aware of law. A Supreme Court Justice or a community organizer serving as POTUS. One was a lawyer for ACORN and the other served years on the Federal Bench.

  6. Dave Schuler says:

    More than a century ago Finley Peter Dunne wrote:

    No matter whether the country follows the flag or not, the Supreme Court follows the election returns

    (translated from the thick Irish dialect of Mr. Dooley)

    If anybody thinks that Supreme Court Justices being political actors is something new, shocking, or escapeable, perhaps this incident will serve to dispel their illusions.

  7. rodney dill says:

    Who acted in a Civil manner last night? ScoreCard
    Alito 1
    Obama 0

  8. DL says:

    Just a cheap Chicago street organizer whose been de-haloed, de-worshipped and demoted, and is now running around trying to get his gang angry at someone else.

    Alinsky might advise here: Richochet the anger, or find a convenient scapegoat – nothing new since Nazi Germany….

  9. Steve Plunk says:

    I hardly see mouthing two words silently as a breach of decorum. The man calling for a way around a Supreme Court decision during the SOTU address with the justices in attendance was being a bully. Bullies need to be stood up to or they will be encouraged to bully more. Alito represents the skinny kid who stands up to bullies.

  10. JayDubbs says:

    It’s hardly unprecidented to criticize a Supreme Court decision, indeed you could argue that opposition to one has been the backbone on the GOP for 30 years. (Roe v. Wade). I don’t have the texts in front of me, but I believe it may have been mentioned before during the SOTU.

    Besides, but for Alito’s reaction, no one would recall that part of the speech anyway. The Supreme Court is the weakest of the branches and there is a reason that the Justices sit there stone faced. I am sure Alito is being reminded of that today.

  11. Zelsdorf Ragshaft III says:

    JW, I believe first amendment rights are clearly enumerated in the document known as the Constitution. There is some question as to where the authority for Roe v. Wade is in that same document. If it were a privacy issue? Should not all abortions take place in the only place privacy is guaranteed and protected? Why is it those who suffer from the mental disease liberalism is, alway throw out an example of something else rather than actually answer the question at hand? The situation last night had nothing to do with Roe v. Wade.

  12. Highlander says:

    From the film clip Justice Alito could have just as easily been experiencing a mild gastro intestinal crisis as perhaps thinking,”what a windbag of liar is the Emperor”.

    Or perhaps, the mention of foreign corporations brought up the unpleasant memories of various Chinese hoodlums for instance buying everybody in sight inside the Clinton White house.

  13. cynic1 says:

    I wont pass judgement on dubbs reading comprehension, but as outlined in the constituion (the American one)defines 3 co-equal branches of our government. In additiion, the reason the Supremes sit “stone faced ” during a normal SOTU speach is that the speaker usually proposes substantive legislation upon which they may be called to rule.

  14. JayDubbs says:

    Can we officially take “judicial activism” off the conservative bogey man list now?

  15. Crust says:

    Can’t a foreign corporation set up a wholly owned US corporation and donate via that? It seems to me what the President said is effectively true even if arguably it can be parsed as something not literally true.

  16. JayDubbs says:

    Cynic,

    History and reality clearly demonstrate that the Supreme Court is the weakest of the three branches.

    As for sitting stone faced, the authority of the Supreme Court relies in large part in the role they have constructed for themselves as the non-partisan arbiter of important issues. Anything that chips away at that facade (and of course, that is all it really is) is detrimental to the Court’s authority.

  17. Wayne says:

    Typical liberal mentality, their guys can act anyway they want by breaking rules, laws, say anything, act rude and inappropriate. That is OK. However anyone else does anything but sit there and take it and it is a major scandal.

    Example, it is ok for the Dems to do anything within their power when they are a majority or when there were a minority but the Reps are wrong for doing the same thing and should “compromise” by doing what the Dems want.

  18. wr says:

    But of course, the Roberts court has given up any notion of being an impartial judicial body, and has become, in its majority, a rubber stamp for the right wing and corporatist agenda.

    Of course now the right demands that we all pay homage to the fiction that they are still honest judges, just as they tried to pass a Congressional resolution praising James O’Keefe as a great American hero. But the evidence is simply too strong to ignore. Eventually the reality will overcome the Republican fiction, and Obama’s comment was a necessary first step.

  19. PD Shaw says:

    It’s hardly unprecidented to criticize a Supreme Court decision, indeed you could argue that opposition to one has been the backbone on the GOP for 30 years. (Roe v. Wade). I don’t have the texts in front of me, but I believe it may have been mentioned before during the SOTU.

    I believe Alito responded to what he thought was a complete mischarachterization of the court’s opinion, one that I don’t think the dissenting justices would even have made.

    What if the shoe were reversed: a conservative President used the State of the Union to complain that Justice Stevens and a majority of the court had just disregarded a century of legal authority preventing the government from banning the publication of political books? I’m sure there would be a justice, mouthing the words “What the #@#@?”

  20. JayDubbs says:

    PD – I understand Alito’s reaction (although don’t agree with it) but think that it doesn’t do him or the court any good. There probably a reason that Scalia doesn’t show up for these things – he doesn’t want to have to just sit there, but he is smart enough to stay away.

  21. PD Shaw says:

    JayDubbs, I agree. I can’t wait to see how many justices show up next year.

  22. PD Shaw says:

    I’m partly responded to Dave Schuler’s remark upthread about politics in the court. I think there are better examples (Bush v. Gore), and simply think Alito, who spent as much time on these legal issues as almost anybody thought that the President’s mischarachterization went beyond reasonable interpretation into falsehood.

  23. Dave Schuler says:

    In my view to remain above politics the Justices shouldn’t attend the SOTU message at all. The president and members of Congress are the political leadership.

    Attending the SOTU is itself a political act.

  24. Michael Reynolds says:

    I agree with Dave. Can we all stop pretending that the Supremes are above politics? It’s silly.

    Supreme Court justices are to the Constitution what Christians are to the Bible: they each find what they want to find, and set aside those things that are inconvenient.

  25. An Interested Party says:

    Alinsky might advise here: Richochet [sic] the anger, or find a convenient scapegoat – nothing new since Nazi Germany….

    Godwin’s Law alert…

  26. sam says:

    @Wayne

    Typical liberal mentality, their guys can act anyway they want by breaking rules, laws, say anything, act rude and inappropriate. That is OK. However anyone else does anything but sit there and take it and it is a major scandal.

    That reminds me, Wayne. How do the Tea Partiers feel about SCOTUS giving the green light to Diplodicorp to spend a gazillion dollars on an election and rent seek to a fare-the-well? That going down OK in Populistland?

  27. steve says:

    “simply think Alito, who spent as much time on these legal issues as almost anybody thought that the President’s mischarachterization went beyond reasonable interpretation into falsehood.”

    True if this was a unanimous decision. Instead, this was a typical 5-4 decision. Does anyone think this is really a decision based purely upon an impartial interpretation of the law that just happened to end up with conservatives on one side and libs on the other? If any of the conservative judges dies or resigns and is replaced by an Obama appointee, how would this decision look? Would that be valid law? If their poor feelings are hurt, too bad. They are making political decisions, so they should expect political responses. Why would it be wrong to ask Congress to work around this? Isnt Congress supposed to write the laws? (FTR I agree with the United Citizens decision)

    Anyway, both sides are just whining. Suck it up and act like men. Obama made a political critique of a political decision. Alito responded, but was quiet about it. Who cares?

    Steve

  28. PD Shaw says:

    Steve: “True if this was a unanimous decision.”

    There was a voracious 90 page dissenting opinion that didn’t make the claims that Obama made. What I’m saying is not that the opinion is above criticism, it’s that the criticism presented by Obama would have been seen as utterly without merit by someone who’s probably read thousands of pages on this issue, participated in two oral arguments, and debated back and forth with his colleagues.

    I don’t consider this a political criticism: “reversed a century of law,” which is when Alito shakes his head. The century of law line appears to have been adopted by newspaper reporters who don’t have time to read the decision, but rely upon summaries e-mailed to them by special interest groups, some of whom might have even been corporations.

  29. Wayne says:

    Sam
    Considering Obama spent nearly a billion dollars to become President and receive probably billions worth of friendly coverage from the corporations that are call the MSM, Unions, Soros, so on and so on , I doubt many are concern about leveling the playing field a little.

    At least this way we get to see a little more of who is paying for some of these advocacy ads.

    By the way, sound like you may be against free speech or at least free speech of those you disagree with.

  30. sam says:

    By the way, sound like you may be against free speech or at least free speech of those you disagree with.

    Au contraire. I’ve come around to the view that the ruling was constitutionally sound. Now, one can believe the ruling was sound, without believing the consequences of it will be salutary for the country. I just was wondering what the populist take on this was. My understanding of populism is that it’s anti-elite, be it political or financial. I would have thought you folks might seem some small– or not so small — problem in the ruling. I guess I was wrong.

    One can make the argument that the big money interests are the mortal enemies of the Tea Partiers. They’ve always been anti-populist. I mean the last thing they want is some populist bomb-thrower being elected to high office. I predicted here, and I stand by it, that a lot of corporate money will be spent to defeat the Tea Party movement if it looks like it has any chance of success. Not a happenstance you’d be pleased with.

  31. Perhaps I’m wrong, but I thought the Tea Party folks wanted limited government that stuck to its enumerated powers.

    That is not a populist sentiment.

  32. sam says:

    Perhaps I’m wrong, but I thought the Tea Party folks wanted limited government that stuck to its enumerated powers.

    That is not a populist sentiment.

    Very droll, Charles. I’m afraid you’ve a tin ear for the rhetoric coming out of the movement. I’ll believe that “stick to its enumerated powers” hogwash when I see the Tea Partiers formally advocate the abolition of Social Security and Medicare.

  33. ptfe says:

    “I believe Alito responded to what he thought was a complete mischarachterization of the court’s opinion, one that I don’t think the dissenting justices would even have made. … There was a voracious 90 page dissenting opinion that didn’t make the claims that Obama made.”

    PD wins the Attempt at Citing a Document He Didn’t Read Award. I point you to Page 2. Yes, Page 2, making it rather early in the document. A summary:

    “Because they may be managed and controlled by nonresidents, their interests mayconflict in fundamental respects with the interests ofeligible voters. The financial resources, legal structure,and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. … The majority’s approach to corporate electioneeringmarks a dramatic break from our past. Congress hasplaced special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907…”

    I’m torn about the CU decision, but seriously, could you just do a minimal amount of research before opening your craw to leave a trail of partisan drool on the floor?

  34. Herb says:

    And the Supreme Court creates a new precedent: Heckling the president.

    I kid, I kid. I’m not outraged by Alito’s remark, but I do wonder why the president can’t make a speech without some Republican (and Alito is a Republican) calling him a liar?

    Who’s going to do it next time? We should start a pool.

  35. PD Shaw says:

    ptfe, I read all of the decisions last week. I don’t believe that sentence indicates Justice Stevens’ belief that the Tillman Act was reversed. Kennedy similarly wrote that “Austin was a significant departure from ancient First Amendment principles.” Would it be fair to say that Austin (1990) reversed the First Amendment and the majority opinion reinstated it? Or are these rhetorical devices to suggest one’s own views are supported by the greater thrust of history?

    There are dozens and dozens of pages dedicated to reversing Austin (1990), McConnell (2003). I think Stevens understands the difference, do you?

  36. ptfe says:

    PD: You made a simple assertion that the Obama’s comments don’t reflect arguments made by any of the justices. Those comments were: (1) the decision goes against a century of jurisprudence; and (2) the ruling opens the gates for foreign influence on US elections.

    Your attempt at a defense that (1) is not indicated by anyone on the court falls apart at the cited (second) sentence from Stevens, which states quite clearly that he feels the majority opinion goes against a century of jurisprudence. It’s irrelevant whether he thinks Tillman has been reversed: Stevens’ opinion rests partly on what he perceives as the trend in allowing limitations on corporate action in elections, which goes back that far. He then proceeds to back this position through a series of rulings in which the court has claimed — rightly or wrongly — a compelling interest in limiting corporate influence in campaigns. Whether you agree with that century of history or not is immaterial: it exists, at least in the opinion of the dissenting justices. So (1) is true, unless you believe that, semantically, Obama’s use of the word “law” in this case was literal, which is absurd. (I will grant that the imprecise choice of language gives you a little latitude, but it’s clear that Obama isn’t confused that the opinion reverses all laws relating to campaign financing going back to 1907.)

    And now we come to (2), which Stevens addresses directly in his dissent, but which is also taken up by. Stevens notes the following:

    “If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the Government’s ability to regulate political speech would lead to some remarkable conclusions. … [I]t would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans…”

    He then acknowledges that the majority carved out a nearly antithetical position regarding foreign influence:

    “The Court all but confesses that a categorical approach to speaker identity is untenable when it acknowledges that Congress might be allowed to take measures aimed at ‘preventing foreign individuals or associations from influencing our Nation’s political process.'”

    However, it’s apparent that Stevens feels this is a concern, as the decision attempts to play both sides of the same issue. He points out the internal contradiction to show that the majority opinion is laced with inconsistency.

    Really, this comes down to the difference between assertion and truth. Kennedy feels that Austin was a 1st Amendment departure; Stevens feels just the opposite (which is why he thinks the Court broke from a century of jurisprudence — Austin was, in his mind, a continuation of ). But if I said that nobody on the court felt that Austin was a departure from the 1st Amendment, you could rightly ridicule me. Note that this has nothing to do with a staked out position on the outcome of the case, nor the merits of the arguments by concurring or dissenting justices. It is solely based on the arguments themselves and whether Obama’s concerns are reflected in the stated opinions of any justices.

  37. Ole_Sarge says:

    But what Alito did was respond to a question of fact. If the cameras had not been on him, no one would have noticed his response.
    While you can question the decorum of the president and the justices action, at the end of the day the matter at hand protects them both. Obama can say what he likes about the ruling, even if what he says is a lie. Alito can also express his opinion about the lie.

    I am watching the destruction of our Republic from the those entrusted with it’s protection. May G-d help us. The individual that sits in the Oval Office is tearing up the Constitution!

  38. PD Shaw says:

    ptfe, you have misunderstood what I’ve written if you think I have a position on any of the merits of the case. I’ve written what I believe to be the reason for alito’s response. He signed on to an opinion which identified banning direct contributions to candidates as having a legitimate purpose, which is not present when banning independent expenditures. Now Obama says that the Court has reversed a century of law?

    The majority believes that the Tillman Act, and banning direct contributions to candidates, are constitutional acts because the government has a legitimate purpose in stopping quid pro quo bribery of public officials, or the appearance thereof. Stevens believes this is a “crabbed” view of the reason that direct contributions may be banned, and that broader concerns over the functioning of democracy are also present.

    IOW, they arguing about why the law is constitutional that Obama just said was reversed.

  39. Have a nice G.A. says:

    I kid, I kid. I’m not outraged by Alito’s remark, but I do wonder why the president can’t make a speech without some Republican (and Alito is a Republican) calling him a liar?

    Well he is either a lier or a complete nincompoop. Is it alright if someone shakes their head while listing to his nonsensical uneducated panderish propaganda while thinking he is a complete nincompoop instead of thinking he’s a lier, or will you protest this also?

  40. Herb says:

    “Well he is either a lier or a complete nincompoop.”

    Um…Obama is hardly the first president that this applies to. Nor is he the most egregious liar (Clinton) or nincompoop (Bush) to hold the office in recent years.

    And yet people in the opposition party can’t seem to contain themselves in public around this particular president. Why is that?

  41. sam says:

    @PD

    Now Obama says that the Court has reversed a century of law?

    PD, I read the president’s statement, and the dissenters’, more as “reversed an historical trend of more than a century.” Is that a fair reading?

  42. Have a nice G.A. says:

    And yet people in the opposition party can’t seem to contain themselves in public around this particular president. Why is that?

    Because he is an arrogant unqualified nincompoop who is so in love wit himself I’m in fear he is going to end up pregnant,He is unlike his two predecessors that you sited who while in office at least had some charm and grasp of reality and reason.

  43. ken says:

    In 1905 at the behest of Teddy Roosevelt the Congress limited corporate interference in the political process. Corporations are not citizens, they are not actual people with any constitutional rights. Corporations are created by the state and are given whatever rights the state want to give them, or none at all.

    Conservatives believe that corporations have the same rights as do natural persons. That is where the conflict arises. Liberals and progressives believe, like did leaders in the past, that natural and constitutional rights are limited to people.

    The Supreme Court was wrong to rule that corporations are protected by the constitution. They are not people. They have no constitutional rights.