He’s on the far left of your screen, seated to the right of Sotomayor. Politico’s calling it his Joe Wilson moment.
When you hear the president of the United States demagoging the First Amendment, you sit there and you take it, son.
FROM JUSTICE ALITO, a “you lie” moment? “POLITICO’s Kasie Hunt, who’s in the House chamber, reports that Justice Samuel Alito mouthed the words ‘not true’ when President Barack Obama criticized the Supreme Court’s campaign finance decision.” Drudge is calling Obama’s criticism “intimidation,” but apparently, they weren’t so intimidated. As I said before, Obama’s behavior wasn’t very Presidential, and it wasn’t very wise.
No, actually, you don’t, and Alito didn’t. And that will step on Obama’s press tonight and tomorrow, turning his demagoguery into a negative for him. That’s why Presidents usually act Presidential. Not so much because it’s dignified. But because it’s smart. That’s something that Obama, with his limited experience on the national stage, hasn’t figured out yet.
Kevin Mooney at American Spectator:
He really did not like that ruling in defense of First Amendment freedoms did he? Has a president ever attacked The U.S. Supreme Court like that in such an august setting? Already, Fox News and CNN have made note of Justice Alito’s lip movements that seem to say “not true.” – A bit more reverential than Rep. Joe Wilson’s editorial comments.
There’s a long and copious list of high court rulings that do not sit well with those of who favor some form of “originalist” jurisprudence and it’s fine for the Supreme Court to figure into campaign talking points. But there is something unseemly about the president’s very vociferous comments and what this says about the separation of powers.
President Franklin Roosevelt’s attacks on the judiciary ultimately worked to his political disadvantage back in the 1930s. Burt Solomon, a long-time correspondent for National Journal, explores the history here in his very excellent book entitled: “FDR V. The Constitution,” which now has a heightened relevance.
It looks like Obama will have at least one more shot at an opening on the high court as it now appears likely that Justice John Paul Stevens will step down. This will not shift the current ideological balance but it does mean that judicial philosophy should figure into the 2012 presidential campaign and perhaps this year’s U.S. Senate races.
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). Beyond that, the endless, deceitful sloganeering by right-wing lawyers about “judicial restraint” and “activism” – all while the judges they most revere cavalierly violate those “principles” over and over — exacerbates that problem further (the unnecessarily broad scope of Citizens United is the latest example of that, too, and John “balls and strikes” Roberts may be the greatest hypocrite ever to sit on the Supreme Court). All of that is destroying the ability of the judicial branch to be perceived — and to act — as one of the few truly apolitical and objective institutions.
Justice Alito’s flamboyantly insinuating himself into a pure political event, in a highly politicized manner, will only hasten that decline. 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.
James Joyner responds to Greenwald:
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.
Benjamin Carlson at The Atlantic
Jonathan Chait at TNR:
Have we really gotten so squeamish? I haven’t seen a convincing explanation as to why it’s so awful for Republicans to disagree with a presidential speech. The answer is “decorum,” but to me, decorum suggests giving latitude to the opposition. The State of the Union, remember, was originally delivered elsewhere in order to avoid the appearance of a president dictating to Congress. Forcing Congress and the Supreme Court to defer to the president as a ceremonial head of state, rather than the head of a co-equal branch of government, runs counter to the deepest spirit of our form of government.
Moreover, it represents the Washington establishment’s prudish aversion to debate. I can see why a loud outburst might be objectionable — though I’d prefer a feisty back-and-forth, like in Great Britain — but to scold Alito merely for moving his lips in such a way as to show disapproval seems to be taking the prudishness to a new extreme. Yes, he’s a Supreme Court Justice and we’re supposed to believe he has no political beliefs or agenda, but in the post Bush v. Gore world it’s a little late for that.
Besides, as Linda Greenhouse reports, Alito was right. Shouldn’t that count for something?
UPDATE ON THAT: Justice Alito mouthed, “not true” and Hot Air has the tape. Bradley A. Smith at NRO writes that the president was wrong on Citizens United v. FEC and ends: This is either blithering ignorance of the law, or demogoguery of the worst kind.
I wonder what Sonya Sotomayor thought of the Chief Executive “with all due deference” dissing the Judicial branch and inciting the Legislative Branch against it.
And you know, I still can’t believe that the guy who amassed more than $600 Million in campaign contributions (much of it from Wall Street, Evil Banks and Lobbyists) had the face to stand there and talk about campaign finance reform. I mean, again – BONG!!! – cognitive dissonance. Is this man totally disconnected from himself?
Isn’t it fascinating that the lengthy, amplified, magnified speech of the most powerful man in the world with his big captive audience — in the magnificent room and in smaller rooms all over the country — are outweighed by one man’s headshake and silent mouthing of 2 or 3 words?
And isn’t it ironic that, right when we saw the judge’s minimalist expression that overwhelmed the President’s torrent of words, Obama was railing about the “powerful interests” and that would use their great wealth to speak far too much during election campaigns?
It’s not how much or how loud you speak that counts, is it?
UPDATE: David Frum posts a twitter conversation on FrumForum
Randy Barnett at Politico
Mark Thompson at The League
UPDATE #2: Mark Schmitt and Brink Lindsey at Bloggingheads