Alito at the SOTU

By now you will doubtless have read that US Supreme Court Associate Justice Samuel Alito supposedly mouthed the words "not true" in response to President Barack Obama's criticism of the Supreme Court's recent Citizens United decision. Glenn Greenwald criticizes Alito, observing that:

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. The Court's credibility in this regard has -- justifiably -- declined substantially over the past decade, beginning with Bush v. Gore (where 5 conservative Justices issued a ruling ensuring the election of a Republican President), followed by countless 5-4 decisions in which conservative Justices rule in a way that promotes GOP political beliefs, while the more "liberal" Justices do to the reverse (Citizens United is but the latest example).

I agree with Greenwald that Alito's reaction was inappropriate, but I disagree with Greenwald's remedy. I think the core of the problem is that the Supreme Court is not "apolitical, separate and detached from partisan wars." Since the Warren Court era, the SCOTUS has routinely seen fit to weigh in as the final arbiter of one political and cultural debate after another. The solution therefore is simple: Unless the plain text of the Constitution as understood by the Framers is being violated, the SCOTUS ought to leave "inflammatory and passionate political disputes" to the political sphere.

As I wrote some years ago in an Examiner column:

Former Democratic Congressman, Clinton Administration White House Counsel and federal judge Abner Mikva once explained that: "I support the result of Roe v. Wade. … But … in retrospect, I wish the court had stayed its hand and allowed the political process to continue, because we would have legislated the effect of Roe v. Wade in most states — not all of them, but in most states — and we wouldn’t have had to pay the political price we’ve had to pay for it being a court decision. The people who are angry at that court are angry beyond measure. As far as they are concerned the whole system is rotten because they’ve lost their opportunity to slug it out."

Justice Ruth Bader Ginsburg has likewise stated that "Roe v. Wade ... halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue."

Because it is custom, tradition, and long familiar patterns that enable people to live together peaceably, social change needs to come slowly. Change and progress are necessary, of course, but sudden change disrupts social bonds, induces stress and engenders controversy as old and vested interests are upset.

Sudden change by a cabal of unelected and largely unaccountable judges is particularly likely to engender controversy. Again, I’ll let Judge Mikva explain: "I don’t think it’s an accident that our founders put the legislative branch in the first article of the Constitution. The reason is that they perceived it to be the first among equals. Most of the people who’d been in Philadelphia had been members of the colonial legislatures, had been members of the Continental Congress, of the early congresses, and they understood the legislative process. They knew how it worked, and they recognized that there was a direct tie between where the people were and where the legislative branch was. They … were nervous about the judges because the English judges had not been an unmixed blessing as far as the colonies were concerned."

The founders knew, like Spiderman, that "with great power comes great responsibility." They ensured that Congress and the President could be held to account. If you don’t like what Congress is doing, you can vote for legislators you like better. You can contribute to candidates all over the country who share your views (of course, your ability to do so is limited because our judges have decided that political campaign contributions deserve less First Amendment protection than, say, child porn). You can give to 527 organizations that will promote your agenda. And so on.

Unfortunately, perhaps because they could not envision the extent to which modern judges would assert control over virtually all aspects of society and culture, the Founders failed to provide adequate accountability mechanisms. If you don’t like what the Supreme Court does, tough. All you can hope is that you can elect leaders who will eventually replace enough of those nine unelected old men and women with individuals whose views are more to your liking. ...

The time is fast approaching when the preservation of democracy will require the creation of new mechanisms for holding judges to account. Term limits might be a good place to start. Until then, however, we must rely on judges to exercise self-restraint. We must hope that judges can tell the difference between cases where intervention is necessary and appropriate, like Brown v. Board of Education, and cases that should remain in the political arena.

Comments

[Mike]

Query: what did you think of the President condemning a SCOTUS ruling right to their faces? And saying something about it that was, according to Politifact, barely true about foreign donations?

I'm not trying to be a partisan jerk or anything. I honestly what your sense of the proper decorum is from both branches.

[Steve Bainbridge]

Mike: The record shows that Presidents have often criticized Supreme Court rulings in the SOTU. In addition to being time-sanctioned, I think it's perfectly legitimate for a President to comment on the impact SCOTUS rulings have had on the state of the union. Especially if the President is going to ask Congress to pass legislation to undo a court opinion.

This is why I would not attend if I were a SCOTUS member. I don't have the mental equanimity to listen to that sort of criticism without responding with the proverbial finger. Better to stay home and watch Top Gear reruns.

[Jeff]

If Obama had not lied about what the ruling entailed then Alito would never have mouthed a thing. If you think its ok for Obama to spit in the face of the court and expect them to sit there and take it then your idea of decorum to twisted beyond parody.

[Just Some Guy]

The SCOTUS is a political body. We must merely admit that fact-- it's a common argument in SCOTUS analysis, and for gosh sakes, when we have lightweights on the court, who can think otherwise?

So: Obama's attack was just fine, and Alito's response was just fine, and we're going to have to get used to the fact that the law is not THE LAW.

[JHE]

Alito didn't disrupt Obama's speech. Nor was he deliberatly trying to draw attention to himself. Therefore, Alito's reaction wasn't inappropriate at all.

I'm more troubled by how deeply dishonest our President is. He knew that foreign companies could not donate unlimited monies under this ruling.

[Lester Dent]

Prof. Bainbridge -

Do you know of any SOTU speeches where a president has openly criticized a fresh opinion in the faces of the justices who rendered it? I know of none, but admit I have not researched it. Most presidential comments I can recall (re Roe v. Wade, Dredd Scott, etc.) are regarding long-settled cases where there may be no justices remaining who voted on it.

[Michael Kennedy]

I don't think we will see them there next year, except possibly Ginsberg and Sotomayor.

[Doc Merlin]

Agreed, Steve.

[ic]

Mike: The record shows that Presidents have often criticized Supreme Court rulings in the SOTU.

The problem in this case was, the President was saying an untruth, that in a less decorous venue, an honest person would say "the President lied".

[SteveM]

I agree with Greenwald that Alito's reaction was inappropriate, but I disagree with Greenwald's remedy. I think the core of the problem is that the Supreme Court is not "apolitical, separate and detached from partisan wars." Since the Warren Court era, the SCOTUS has routinely seen fit to weigh in as the final arbiter of one political and cultural debate after another. The solution therefore is simple: Unless the plain text of the Constitution as understood by the Framers is being violated, the SCOTUS ought to leave "inflammatory and passionate political disputes" to the political sphere.

I agree with you here in general, but your remedy has no bearing on the First Amendment case in dispute between Obama and the Court.

Does it?

[SteveM]

(Meant to put your words in quotes, sorry)

[mark l.]

"I don't think we will see them there next year, except possibly Ginsberg and Sotomayor."

I don't think we'll see many of the same congress critters, either.

[W J Alden]

You're absolutely right that Alito's reaction was inappropriate. I mean, well, gosh, it was hard to hear all the clapping, cheering, howling, standing and stomping going on every five seconds over the noise of Justice Alito silently shaking his head and mouthing a few words of disagreement.

The SOTU is mere political theatre. If Obama chooses to make it a slightly more vulgar form of theatre than it has been in the past, then so be it. Don't expect his audience to not respond in kind.

[Fatty Bolger]

I agree with the other commenters. Alito was reacting to Obama's bald faced lie, not his criticism of the ruling.

[Octus]

It would make SCJOTUS much easier if they would take the "Congress shall make no law..." part of the constitution seriously.

[eric]

"The record shows..." What record are you talking about? I only have SOTU back to 1913 available on line and of the 13 times the Court is mentioned there do not appear to be any which would be construed as critical. Can you tell me which years you are refering to?
thanks

[Count de Money]

I would like to point out the the ruling by SCOTUS was a constitutional ruling and that the Obama, aside from getting the ruling all wrong, was urging the Democrats to reverse it by statute.

Someone who supposedly taught constitutional law thinks that statute trumps the U.S. Constitution? So either Obama was telling a bald-face lie to play to his supporters or he (or his speechwriter) is an idiot. No other choices here

[Fred Williams]

I certainly agree with you that "the core of the problem is that the Supreme Court is not 'apolitical, separate and detached from partisan wars.' " However, I would really appreciate your thoughts on just whose speech would be protected in granting first amendment political speech rights to a publicly and internationally owned for-profit corporation formed mainly for some purpose other than political speech whose stockholders hold a variety of political views, some opposed to the political positions being taken by the corporation, and none of whom would be liable (or socially sanctionable), as stockholders, for any libelous statements made by the corporation.

I accept that corporations are best understood under a "nexus of contracts" theory, but there is a tenuous connection between those with a claim on the corporation's assets and the use of those assets, such that tremendous amounts can be brought to bear on accomplishing political results for transnational profit purposes, and tilting the democratic process in the direction of financial power, relative to the kinds of proportional representation that so concerned the framers of the Constitution. I fail to see how an opinion rooted in the notion of corporate personhood (going back to the mis-cited Santa Clara County case) can be justified by the proposition that the corporation is really just a collection of people bound together by contract, as ordered by state law. That there are limits on speech rights has been part of Constitutional jurisprudence going back at least to Holmes' opinion in Schenck (later refined in Brandenburg). It seems to me that reasonable limits can be placed on corporate speech. 

I do agree that the legislation in question in the Citizens case is extremely problematic, but it seems the decision could have been made on narrower grounds, and possibly opening the door to leaving the ridiculous notion of constitutional personhood for corporations where it belongs - in the Supreme Court Hall of Shame.