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.
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.)
UPDATE: Glenn 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.