It wasn’t exactly a “You lie!” moment, reminiscent of Republican Rep. Joe Wilson’s outburst the last time the president addressed a joint session of Congress. But President Obama’s State of the Union speech this week did include an episode that has left commentators clucking over political tradition and decorum.
That’s when Obama needled – well, lambasted – the US Supreme Court for a recent decision he said would “open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.”
Sitting right in front of the president – robed in sober black, hands folded in their laps – were six of the justices, including three who had made it possible (in Obama’s words) for American elections to be “bankrolled by America’s most powerful interests, or worse, by foreign entities.”
Now, normally the justices (like the uniformed and bemedaled members of the Joint Chiefs of Staff also sitting down front) express no emotion during the president’s speech – no applauding, no sniggering, no eye-rolling. That’s for the politicians packing the chamber. The judges’ and the generals’ role on this occasion is to appear serious, substantial, and above all nonpartisan.
But Obama’s mention of the campaign finance decision caused Associate Justice Samuel Alito’s expression to go dark as he shook his head and appeared to say “Simply not true.”
Clashing of legal minds
Obama was a professor of constitutional law, and Supreme Court justices are pretty smart people too. Alito went to Yale Law School, Obama to Harvard. So this was a major – and very public – clashing of legal minds. Even though Obama had ad-libbed “with all due deference to separation of powers” into his prepared text before unloading on the court, this was big-time head-butting between the Executive and Judicial branches of federal government.
Some legal authorities worry about this.
“The court’s legitimacy is derived from the persuasiveness of its opinions and the expectation that those opinions are rendered free of partisan, political influences,” former New Jersey Supreme Court justice Peter G. Verniero told the New York Times. “The more that individual justices are drawn into public debates, the more the court as an institution will be seen in political terms, which was not the intent of the founders.”
Not surprisingly, advocates on the left and right made what they could of the moment.
“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 an attempt to silence the diverse range of speakers in our democracy,” huffed Bradley A. Smith, chairman of the conservative Center for Competitive Politics.
Over at the more-liberal Salon site, Glenn Greenwald accused Alito of “flamboyantly insinuating himself into a pure political event, in a highly politicized manner.”
Breach of protocol?
He wrote: “The behavior of Justice Alito – visibly shaking his head and mouthing the words ‘not true’ when Obama warned of the dangers of the Court’s Citizens United ruling – was a serious and substantive breach of protocol that reflects very poorly on Alito and only further undermines the credibility of the Court.”
In a way, Obama wasn’t speaking directly to the court (which would have been petty and non-productive – the justices aren’t going to reverse themselves just because he speaks harshly to them) but to Congress. The president and boosters of campaign finance law want lawmakers to pass something that can limit campaign contributions by corporations while also passing constitutional muster with the high court.
If such legislation is ever signed into law, it’ll be fun to watch as it goes to the Supreme Court (which it surely would) – especially to see what Justice Alito would have to say about it.
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