In response to attacks on Justice Alito for shaking his head and mouthing “that’s not true” in response to the President’s criticism of the Citizens United decision, Dahlia Lithwick writes:
There was absolutely nothing wrong with the president’s criticism of the court’s decision, although as Linda Greenhouse points out, he was less than precise in his description of the holding. But there was also absolutely nothing inappropriate about the justice’s reaction to him. Both the president and the justices are political actors, and all are entitled to screw up their faces and grumble in public as they see fit. Anyone who’s watched Alito at oral argument at the high court knows that he screws up his face and mutters to himself all the time. The suggestion that he was showboating or grandstanding last night is spectacularly unfair. Unlike several of his colleagues, Alito is meticulously polite, balanced, and measured on the bench, and goes out of his way to shun big drama. I’m sure if Alito could take it back this morning he would. I’m equally sure that if he attends the next SOTU at all, he won’t move so much as a muscle.
While I disagree as to whether the President fairly characterized the CU opinion, I think her overall assessment is spot on. There’s nothing wrong with a President criticizing a Supreme Court opinion with which he disagrees, even in a State of the Union address, and there was nothing wrong with Justice Alito’s response. Members of Congress often scowl or indicate quiet disapproval with a State of the Union address, and Justice Alito gave a natural, muted response to strong criticism, and he can be forgiven for his naive belief that it would not end up on TV.
I understand why some don’t like the scene of a President lashing out at the Court while several justices sit before him — but this is a matter of staging not substance. There’s a long tradition of President’s criticizng the Court — think Abraham Lincoln. If we don’t like the image of a President scolding Supreme Court justices, the answer is not to muzzle the President. Instead we should ask the justices to watch the SOTU from home.
UPDATE: Andrew Cohen thinks this is much ado about nothing — “Is the “legal world’ so sensitive that it sees mountains where molehills exist?” — but he lets his outrage at the outrage get the better of him. In defense of the President’s remarks he poses the rehtorical question: “Did the Supreme Court last week not reverse a century of law (and two controlling precedents) to open floodgates to campaign spending from unions and corporations, foreign and domestic?” No, it did not. As Linda Greenhouse explains, the Supreme Court opinion did not “reverse a century of law,” and as Bradley Smith notes, the Court did not address the federal statutory provisions that limit political contributions and expenditures by foreign corporations. I agree with Cohen that it’s perfectly appropriate for a President to criticize a Court opinion with which he disagrees, but I would not defend the accuracy of the President’s specific remark.
CJColucci says:
But — but — isn’t it unseemly?
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January 28, 2010, 3:21 pmSimply George says:
It was Contempt of Court.
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January 28, 2010, 3:22 pmGuest101 says:
“While I disagree as to whether the President fairly characterized the CU opinion...”
I don’t quite follow this– her reference to Greenhouse sounds like Lithwick thinks Obama did not fairly characterize the CU opinion (though I can’t get her link to Greenhouse to work so that’s an assumption from context); are you saying you think he did fairly characterize it?
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January 28, 2010, 3:33 pmsteve s says:
Agreed. They were all wearing their big boy clothes so we should expect them to be capable of a little give and take. This is much ado about nothing.
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January 28, 2010, 3:38 pmKen Braithwaite says:
It was wrong of Obama precisely because the justices are expected to sit there and not react beyond politeness. That places an obligation of politness and defernce on him in this specific situation and he rode roughshod over it.
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January 28, 2010, 3:38 pmDjDiverDan says:
Obama was “less than precise” in his description of the Citizens United holding? Okay, I guess I can buy that — “less than precise” is sufficiently vague that it could encompass other, more “precise” descriptions of Obama’s characterization of the holding — like “wildly inaccurate and intentionally misleading”.
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January 28, 2010, 3:39 pmruuffles says:
Linda Greenhouse and others mentioned that for several years Breyer was the only attendee. The fact that Breyer attends is no surprise since he’s “from” the Senate and holds Congress in high regard. I’m curious why Kennedy and Ginsburg didn’t attend for a few years (Breyer has always served with them). Does anyone have the back story on the lack of attendance in years past (90s,00s)?
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January 28, 2010, 3:40 pmDjDiverDan says:
OBTW, the “wildly inaccurate and intentionally misleading” label could, in my opinion, just as accurately be attached to Stevens’ Dissent’s characterization of the majority opinion. So it’s not like Obama is without good company.
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January 28, 2010, 3:41 pmruuffles says:
Ronald Reagan disagrees.
from blt
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January 28, 2010, 3:41 pmstashy says:
Because our politicians have so disgracefully politicized and polarized the judicial nomination process, there are at least two loci where neither sitting federal judges nor federal judicial nominees should ever appear: at SOTU speeches and at judicial nomination hearings. Their attendance at such theatrically staged partisan events serves no judicial (or judicious) purpose.
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January 28, 2010, 3:45 pmARCraig says:
Forget the Justices. How about insisting the President stays home? I’ll take Jeffersonian humility over a Wilsonian Speech from the Throne any day.
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January 28, 2010, 3:46 pmAllan Walstad says:
How about save on all the theatrics and have the President submit his report in writing?
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January 28, 2010, 3:46 pmB.D. says:
but this is a matter of staging not substance
That’s the whole point. Even if Obama had accurately characterized the decision in his public scolding of the Court—which he didn’t—it was not the right venue for his hissy fit. The Justices had to just quietly sit there while surrounded by hundreds of congressional morons hooting and applauding. It was a cowardly and bullying attempt to embarrass another branch of government.
And despite what Dahlia Lithwick writes, there are (formally, at least) only two political branches of government.
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January 28, 2010, 3:49 pmBrad Ford says:
It was my understanding that the Supreme Court members were expeected to attend.
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January 28, 2010, 3:50 pmConstantin says:
It would be nearly impossible for someone to hold Obama in lower regard than do I. I have no use for the guy. But I don’t have any problem with what he did last night, nor with Alito’s response. As usual, Obama proved himself a dunce on the facts, but I see nothing wrong with his exercise of his prerogative to do so.
The Supreme Court is a co-equal branch of government. It’s not some kind of quasi-aristocracy immune from criticism. Conservatives griping about the shot Obama took are the first, in other contexts, to knock the Court for its regal self-regard. I also don’t quite get the “he picked on someone who can’t fight back” argument. Why not? Alito is one of the twenty or thirty (at max) most powerful people in America. He can fight back just fine. And he should. It’s not like Obama doesn’t present plenty of targets for response. I say have at it on all sides.
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January 28, 2010, 3:50 pmcorneille1640 says:
As a question of style, you might have a point. Maybe it is unseemly for the president to lecture the members of the Court, but that’s about all. They came voluntarily, could have left if they had wanted to, and unless they committed a crime or otherwise do something so outrageous that they get impeached and convicted, they’d keep their job regardless of their response. At least the Congresspersons would have had to face voters or potential censure from their chamber, and the cabinet could be replaced at the pleasure of the president. But the court members? I think they’re made of stern stuff and have enough job security to survive.
For what it’s worth, I agree with the result in Citizens United and disagree with Obama on this issue.
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January 28, 2010, 3:52 pmCMH says:
They’re not “expected” to sit there. They don’t have to go at all. It’s already been mentioned that for years, only Breyer attended, and even last night, three of them (Scalia, Thomas, and Stevens, I believe) didn’t attend.
I fail to understand the proffered distinction here, that it’s okay for Obama to trash them outside of their presence but not to do it to their face. If Obama calls Alito or any of them $&%*# on his weekly radio address or in any other speech, what right to reply or rebuttal would they have? Would it be okay if Alito wrote an op-ed about what a poor constitutional scholar Obama is after that?
The reality is that with rare exceptions (see Scalia & Bush v. Gore), the SCOTUS simply takes its lumps in relative silence.
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January 28, 2010, 3:54 pmPragmaticist says:
Only a bulvon would not understand that the President should not have berated them to their faces in such a forum.
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January 28, 2010, 4:00 pmKen Braithwaite says:
Two posters have put up puzzling reponses to my note. One suggested the justices could have WALKED OUT in the middle of the speech. That is an absurd claim in a thread discussing if Alito’s silent mouthing was excessive. That would have been grossly inappropriate disapproval. The point is they were there there as a ceremonial thing, and are expected to be pretty passive when there. (Maybe they shouldn’t attend but traditionally they do.) So their obligation to be accepting places an obligation of politesse on Obama, which he ignored.
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January 28, 2010, 4:00 pmpete says:
Personally I prefer the British style of parliament where everyone does there best to insult the opposition and where things like Joe Wilson yelling “you lie” are considered pretty tame.
Am I the only one who thought it was kind of strange that the judges all show up wearing robes? Maybe that is part of why people have a problem with it since you are not supposed to disrepect judges while they are on duty.
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January 28, 2010, 4:01 pmruuffles says:
I read somewhere that there were a few years recently that no one attended.
This is what JCG said.
So does anyone know where to look for records of such attendance?
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January 28, 2010, 4:02 pmruuffles says:
That’s not without precedent. Sort of. A sitting judge, Wilkinson of the 4th ct, wrote an op-ed in the wapo asking Obama to respect the balance of the 4th.
http://www.washingtonpost.com/wp-dyn/content/article/2009/01/22/AR2009012202842.html
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January 28, 2010, 4:05 pmruuffles says:
So ... Reagan is a “bulvon” then?
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January 28, 2010, 4:06 pmSwan Trumpet says:
Mr. Obama mischaracterized the majority opinion in Citizens United. Given the level of fact checking that normally goes into a State of the Union speech, the fact that Obama made this error is reason to think it wasn’t a simple mistake; it was a deliberate lie to the American people.
The second mistake Obama made is that he used an inappropriate forum to criticize the Court. Mr. Obama had already gone on record in news conferences airing his dislike for the decision and his intention to get Congress to thwart it. (That alone says a great deal about Obama’s respect for separation of powers.) Using a State of the Union Speech to launch a direct attack on the Justices present — in a forum where they had no opportunity to correct his error and defend their decision — was rude and disrespectful. Supreme Court Justices are not legislators and not politicians. They don’t call press conferences and slam Mr. Obama for his ignorance on both the facts and the law.
Justice Scalia chose not to attend last night’s speech. I wouldn’t be surprised if more members of the Court choose to avoid Obama’s next one.
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January 28, 2010, 4:10 pmruuffles says:
So ... Reagan was rude and disrespectful?
You shouldn’t be, considering attendance has been sporadic to non-existent in years past.
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January 28, 2010, 4:13 pmArthurKirkland says:
I see a bunch of wild (and misdirected) fire.
The Court’s decision was debatable. The procedural route the Court chose didn’t improve the situation; neither did the affront to precedent. But the ruling was certainly within the range of reason. Even if legally correct, however, the decision is expected by many to generate unattractive consequences. I, for example, tend to believe corporation-funded campaign speech might be a type of speech that is protected by the Constitution but is to be tolerated rather than applauded (such as the obnoxious speech of bigots, the fraudulent speech of televangelical hucksters, and the like).
The President called on Congress to address the perceived risk of negative consequences by enacting legislative (most likely, to adjust the balance between corporate privileges and limitations). That call would be proper regardless of whether the President believes the decision to have been legally strong, legally weak or a legal coin flip. As a general rule, legislative or executive adjustment in the wake of new instruction from the Court regarding Constitutional requirements is not only permissible but rather a textbook civics lesson.
I like President Obama and Justice Alito; from many first-hand observations, I believe each to be a smart, well-meaning, pleasant man. I don’t have the speech before me, but I don’t recall that the President questioned the Justices’ character. He lamented judicial activism (disrespect of precedent), but I doubt he is the first President to do so, even in a State of the Union address. He expressed concern about consequences, which is his current job. He asked Congress to address a perceived problem, also his current job.
From my familiarity with Justice Alito, I suspect he is somewhat embarrassed. He is a somewhat modest, temperate, thoughtful man. I do not see his conduct, or its catalyst, as more than a five-minute curiosity.
If Justice Alito feels aggrieved, or wishes to respond for another reason, he need only look to a nearby office for inspiration. Several of his colleagues are outspoken critics, with legislators, presidents and citizens among their targets. Some are so strident they attempt to enforce restrictions on recording or republication of their comments.
The President was doing his job. Justice Alito probably would prefer to have refrained from providing that video. But whether he was attempting to communicate with the President standing a few feet in front of him, or instinctively reacting to something that bothered him, I see no reasonable argument that either man acted improperly.
I see, instead, misdirected fire in nearly all directions from the trigger-happy and uninformed.
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January 28, 2010, 4:17 pmSwan Trumpet says:
Here’s Reagan’s remarks at his 1986 State of the Union:
I think you need to find another example.
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January 28, 2010, 4:24 pmDerHahn says:
Obama Last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections.
Regan Yet we are denied the right to set aside in our schools a moment each day for those who wish to pray.
Yup, twins seperated at birth.
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January 28, 2010, 4:24 pmIchthyophagous says:
As a non-lawyer with some interest in the law, I find the indignation about Alito’s silent mouthing (for example here: http://www.salonmag.com/news/opinion/glenn_greenwald/2010/01/28/alito/index.html) hilarious. So when Obama says something about the Constitution in a speech, I can boo and hiss, but an SC justice isn’t even supposed to open his mouth silently?
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January 28, 2010, 4:26 pmConstantin says:
ruuffles, as I wrote above I’m fine with Obama’s criticism, though I think it uninformed. But, do you really think that quote from Reagan’s speech is the equivalent of what happened last night?
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January 28, 2010, 4:28 pmruuffles says:
Both criticized the supreme court, both proposed legislation or amendments to fix it. The only difference is that Reagan talks like a grandpa in tone.
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January 28, 2010, 4:31 pmruuffles says:
Exactly.
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January 28, 2010, 4:32 pmGordon Langston says:
What’s a bully pulpit for?
If he really was looking for a scrap with the SC, he should have mentioned the Chicago Gun Case and the possibility of overturning Slaughterhouse.
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January 28, 2010, 4:35 pmmethodact says:
But could it have all been scripted?
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January 28, 2010, 4:42 pmSwan Trumpet says:
I strongly urge you to go to C-Span and listen to the 90 minutes of oral arguments presented last September in Citizens United v. F.E.C. If for no other reason, it was the first case where you get to hear Justice Sotomayor asking questions. The Court did not address the limitations on monetary contributions to campaign financing. Instead, this was a first amendment free speech case. The Issue was the F.E.C. banned the airing of a documentary called Hillary: The Movie produced by groups including the NRA who opposed Hillary’s election.
Corporations who happen to be news organizations have an exemption to the ban which is problematic under the constitution. It also raises the awful issue we recently witnessed where the president and White House advisors spent a Sunday giving news media interviews where they all uniformly declared FOX news was not a ‘legitimate’ news organization. This was followed up by an attempt to exclude the Fox News White House correspondent from attending a press conference. After all, before the Court overturned this precedent, it was in the power of the F.E.C. to ascertain what is and isn’t a legitimate news organization. The authority that existed — and that Obama’s czar Mark Lloyd intended to use — would extend not just to major media sources, but also to book publishers, bloggers, etc.
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January 28, 2010, 4:46 pmFirst Chair says:
It was a “cheap-shot”, a “sucker-punch” indeed a scripted “got-cha”, archetypical “Chicago street” politics delivered knowingly and willfully to hapless eminent guests of the Congress.
Alito’s reaction was just that –a mere happenstance, not planned in advance. Certainly not scripted as the provocation (so that the television cameras could readily focus on the Justices and capture any twitched reaction).
Indeed, it was a “teaching moment”, albeit abusive of office and decorum.
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January 28, 2010, 4:47 pmJT says:
maybe, but Reagan did it obliquely, and requested legislation to fix it. Obama flat out (mis)stated that the court overturned 100 years of jurisprudence and precedent and that legislation is needed to fix it. If Obama had merely requested (constitutionally sound) legislation to remove corporate influence from the political process, it would be the same thing. It’s subtle, but noticably different. Reagan made his point without actually calling out the supremes to their faces, Obama openly criticized the decision. So your comparison is not really fair (although it comes close).
Again, the real issue with Obama’s statement shouldn’t be whether he made it, but whether it was an accurate characterization of the opinion. And Alito’s response would have gone unnoticed (unlike “you lie”) had the cameras not been on him — and should be a non-event.
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January 28, 2010, 4:59 pmbartman says:
Personally I prefer the British style of parliament where everyone does there best to insult the opposition and where things like Joe Wilson yelling “you lie” are considered pretty tame.
Actually, calling someone a liar is one of the few things that will get you tossed from Parliament.
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January 28, 2010, 5:04 pmJones' Cell Mate says:
For such a big country, we sure seem to have an awfully small President.
It was explained to me that the new President was a thoughtful, intelligent individual. Can anyone explain why such a man would be channeling Sean Hannity while insisting we abandon the First Amendment in order to protect us from them dangerous for-ners? If he wanted, as Reagan did, to urge the Congress to address the matter in light of a recent SCOTUS ruling, that would have been one thing. His embarrassing, anti-intellectual pout was quite another, irrespective of the inappropriateness of the venue.
In any case, I appreciate the “but Regan” defense from some of our leading pseudo-progs. Sure it’s pathetic and sad (particularly given the respective comments) but it’s better than the “but Bush” defense that the President has made the centerpiece of his Administration.
Go get ‘em Barry– you are the one I’ve been waiting for.
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January 28, 2010, 5:10 pmCharles says:
Reagan made his point without actually calling out the supremes to their faces, Obama openly criticized the decision.
Isn’t usually the call, “If you have something to say, say it to my face”. The Supreme Court all the time takes jabs at Congress and the President in their opinions. And a majority of the time no one calls them on it.
I don’t see why this is a big deal.
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January 28, 2010, 5:11 pmJones' Cell Mate says:
My kingdom for an edit feature!
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January 28, 2010, 5:19 pmSwan Trumpet says:
It’s often bypassed. Churchill had a few phrases to call others liars without using the word “liar”. One of them was “terminological inexactitude”. Others have used “He plays fast and loose with the truth.”
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January 28, 2010, 5:25 pmRPT says:
Alito’s reaction is not the end of the world, but he’s sophisticated to know it’s appropriate to keep a neutral expression when you’re spoken about in this context, especially after Joe Wilson. If Scalia could do it, he certainly could. This discussion wouldn’t be happening otherwise.
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January 28, 2010, 5:38 pmRPT says:
From the “notoriously unreliable” Think Progress site:
“The progressive PR firm Murray Hill Inc. has announced that it plans to satirically run for Congress in the Republican primary in Maryland’s 8th congressional district to protest the Supreme Court’s disastrous decision. A press release on its website says that the company wants to “eliminate the middle man” and run for Congress directly, rather than influencing it with corporate dollars:
“Until now,” Murray Hill Inc. said in a statement, “corporate interests had to rely on campaign contributions and influence peddling to achieve their goals in Washington. But thanks to an enlightened Supreme Court, now we can eliminate the middle-man and run for office ourselves.”
“The strength of America,” Murray Hill Inc. says, “is in the boardrooms, country clubs and Lear jets of America’s great corporations. We’re saying to Wal-Mart, AIG and Pfizer, if not you, who? If not now, when?” [...]
Campaign Manager William Klein promises an aggressive, historic campaign that “puts people second” or even third. “The business of America is business, as we all know,” Klein says. “But now, it’s the business of democracy too.” Klein plans to use automated robo-calls, “Astroturf” lobbying and computer-generated avatars to get out the vote.
Murray Hill Inc. plans on spending “top dollar” to protect its investment. “It’s our democracy,” Murray Hill Inc. says, “We bought it, we paid for it, and we’re going to keep it.”
Murray Hill Inc. released its first campaign video Monday. A narrator in the video explains, “The way we see it, corporate America has been the driving force behind Congress for years. But now it’s time we got behind the wheel ourselves.”
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January 28, 2010, 5:50 pmChris Travers says:
First, having read the President’s comments, they could be interpreted either of two ways: either there are no financial limits to the amount that corporations can spend in electioneering (true) or there are no legal limits on the use of corporate funds in elections (false). Whether or not Obama was unfairly characterizing the Supreme Court opinion has a lot to do with how one parses his words. Indeed, the choice of words might have been suboptimal, but whether they are unfair or not is in the ear of the listener.
Where the real outrage is, IMO, is the fact that the MSM have furthered a view of Citizens United which this controversy should be providing a great opportunity correct but they decline to do so.
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January 28, 2010, 5:56 pmJT says:
It’s not a big deal, as I said. I just pointed out that there is a subtle but important (in terms of calling out the opinion of the supremes) difference in the rhetoric employed by Reagan and Obama and, therefore, the two examples are not necessarily comparable.
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January 28, 2010, 5:57 pmleo marvin says:
Hack.
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January 28, 2010, 6:06 pmgeokstr says:
Agreed.
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January 28, 2010, 6:19 pmChristopher Cooke says:
I don’t think it’s a big deal. Alito was probably not intending any disrepect and was unconsciously mouthing his views (probably he made this remark unconsciously, when Obama said that the decision would allow foreign corporations to influence our elections). Anyway, my guess is that Alito would be fun to play poker with.
Obama’s criticism of the Supreme Court majority appears to be derived from Stevens’ dissent. I think his comments were respectful and I see nothing wrong with the President telling the Supreme Court, even face to face, that he disagrees with their decision when he is giving the State of the Union address. That is what a dissenting justice does, after all, when he or she reads his or her dissent from the bench.
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January 28, 2010, 6:20 pmNR says:
Hack.
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January 28, 2010, 6:22 pmRPT says:
But this one they got right.
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January 28, 2010, 6:36 pmChris Travers says:
Agreed. Also I know plenty of very intelligent and capable people who mutter to themselves and shake their heads without necessarily carefully controlling or thinking about that either. So I don’t see why Alito gets a lot of heat for what he did.
Apparently Alito is well known to do a lot of this at the bench as well.
Indeed, I get the impression that the media is talking about this because it is a nice way to avoid talking about what Citizens United actually ruled....
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January 28, 2010, 6:39 pmArthurize says:
I completely disagree with the suggestion that Obama’s remarks in this context were appropriate.I think they were rude–not to mention misleading– and were intended to be, knowing as he did that they were sitting there under the custom that treats them as guests who cannot engage the speaker.
Obama declared the Supreme Court decision to be not just wrong as a matter of law, but anti-democratic. It was specifically intended as a populist applause line, with full knowledge and intent that the resulting standing ovation would embarrass and discomfort the members of the Court to whom the remark was directed.
When dissenting justices read their dissents from the bench, they do not do so in order to elicit an ovation from their supporters intended to embarrass the majority. In fact, if you did applaud, you’d be thrown out of the courtroom.
I thought it was cheap. Can you imagine Bush telling the Congress and a national TV audience that the Supreme Court, sitting there before him, had issued a Hamdan decision that would make the country less safe, knowing this would inspire Cheney the Hun to lead a standing ovation in response?
Maybe, as is said, a judge is only a lawyer who is friends with a politician, and they should expect to be placed in this position. But I wouldn’t expect that approach from a professor of constitutional law.
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January 28, 2010, 6:44 pmPerseus says:
I understand why some don’t like the scene of a President lashing out at the Court while several justices sit before him — but this is a matter of staging not substance.
Staging, or the form, matters even if (indeed especially because) people in democracies have an instinctive distaste for forms. In a State of the Union address delivered to Congress, it is perfectly appropriate for the president to recommend remedial legislation, but the direct potshot at the Court was unseemly and gang-like (with two branches of government beating up on a silent third branch with populist rhetoric and cheers).
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January 28, 2010, 6:54 pmRPT says:
Perseus:
Actually, it was only the D side that rose to applaud anything; the R’s couldn’t even clap for tax cuts. If the R’s had been quick thinking they would have added some multi-cultural group in judicial robes to the audience in Gov. McConnell’s rebuttal.
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January 28, 2010, 7:38 pmleo marvin says:
How dare you!
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January 28, 2010, 7:51 pmSwan Trumpet says:
There have been no tax cuts. Mr. Obama did give out a one-time $600.00 rebate to those whose incomes are so low they pay no federal income taxes, and a few targeted tax credits aimed at first-time home buyers, cash-for-clunkers, etc. Republicans have been urging Mr. Obama to extend the Bush income tax cuts due to expire this year, and Mr. Obama has no plans of doing so.
Liars don’t get applause simply for lying creatively.
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January 28, 2010, 7:57 pm1040 says:
i dont understand this “silent third branch” business. nobody muzzles the sc and some of the justices have been perfectly happy to speak up about controversial stuff when it suits their fancy. of course, when it doesn’t, they love to hide in the penumbra of privacy the star chamber provides them.
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January 28, 2010, 8:05 pmMichelle Dulak Thomson says:
One thing I haven’t seen addressed is why the cameras happened to be on Alito at that moment in the first place. Is the SOTU ordinarily filmed with an eye to “reaction shots” from people whose positions or actions have been attacked? (Sincere curiosity here, & not a rhetorical question. I much prefer reading SOTUs to watching them. For one thing, it’s a lot faster; for another, it leaves out all the annoying theatrics. I’m wholeheartedly with the commenters here who think the SOTU ought to be delivered in writing.)
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January 28, 2010, 8:06 pmSwan Trumpet says:
The Citizens United majority opinion found that no longer will the public be deprived of seeing and reading political advertising and viewpoints which happen to have corporate sponsorship. No longer will Bill and Hillary Clinton be able to use the FEC to threaten those who would disseminate information they don’t want publicized.
The Citizens United majority opinion reaffirmed the views of our Founder and fourth Chief Justice, John Marshall, who wrote that a corporation may act as a single individual.
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January 28, 2010, 8:08 pmdr says:
Why do I have the feeling that your professed reverence for the separation of powers and distaste for Congressional action to overcome a court ruling wanes a bit when you don’t agree with the court ruling in question?
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January 28, 2010, 8:08 pmdr says:
Yeah, pretty much. The director of the pool feed has the SOTU text ahead of time, and they plan their shots accordingly. Naturally, if the President mentions the court, the director will go to that shot. Same as how they’re ready with a shot of the First Lady when the text mentions the first lady, etc...
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January 28, 2010, 8:14 pmPerseus says:
My series of comments on this topic have been about constitutional forms and institutions, although I realize that hyper-partisans reduce everything to party partisanship.
(As for Governor McDonnell-not to be confused with Senate Minority Leader McConnell–I presume that the GOP image-makers believed that a multi-ethnic group of people sitting behind the governor during his address would suffice. But if it’s fine to dispense with propriety, perhaps Justices Thomas and Scalia should have attended to add to the multi-ethnic rainbow.)
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January 28, 2010, 8:25 pmSwan Trumpet says:
The campaign finance laws are inherently flawed because they are crafted and passed by Congress — a group of elected incumbents with a vested interest in ensuring the playing field during an election cycle is not level. McCain/Feingold was crafted to prevent upstart challengers from embarrassing incumbents in the area they are most vulnerable — their voting history.
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January 28, 2010, 8:34 pmRicardo says:
I’ve seen cameras trained on Supreme Court Justices in past State of the Union addresses. That’s why I’ve always found their presence a bit unseemly. SOTU is basically an hour and a half of platitudes and political posturing. Sometimes some of the Justices join in on some of the applause lines while I would prefer that they refrain from any public show of support for any politician as much as possible. Sitting still and not applauding would create its own awkwardness, with this instance as an extreme example.
They ought to stay home. It’s a bit of political theater that the judicial branch ought to stay far away from.
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January 28, 2010, 9:00 pmMark Field says:
Wow, there’s a lot of vitriol in this thread, most of based on sheer falsehood. Let’s start with Obama’s actual words:
“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections.” My emphasis.
Now, it’s clear that Obama was not “lying” when he said the words which followed “I believe”; at the least no one on earth has any way of knowing his secret thoughts. “He believes” something will happen. That’s not even a factual statement, it’s a prediction. Maybe it will come to pass, maybe it won’t. The legitimate point of the comment, though, was to ask Congress to make sure it did NOT happen. That’s exactly what a SOTU is for.
As to his characterization that the decision “overruled a century of law”, that refers to the fact that the first law passed regulating corporate spending in politics was passed in 1907. There’s nothing false or wrong about what he said.
There are more falsehoods in this thread — and more disrespect also — than in the SOTU.
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January 28, 2010, 9:14 pmSwan Trumpet says:
The majority opinion took great pains to make clear that the ruling did not affect the current laws against foreign funding for campaigns and electioneering. In order for your statement to be correct, the only alternatives are to believe Mr. Obama was sharing his beliefs on a Court opinion he had not read and his many well-paid fact-checkers on the public dole hadn’t bothered to read either.
Either he lied, or was speaking about an opinion he hadn’t bothered to read. you choose.
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January 28, 2010, 9:29 pmPerseus says:
Agreed, and had he used greater restraint in his preamble directly attacking the Court’s decision, I would not have criticized his remarks.
Surely you are not comparing a comment thread on VC to a State of the Union address? And if, by chance, you are, I don’t know whether we should take it as praise or an insult.
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January 28, 2010, 9:51 pmArthurize says:
Swan Trumpet–
Just so. Of course, in any speech by this president, “I” will be emphasized.
This is my problem: this is a man whose champions claim that he elevates public discourse.He is also supposed to be a lawyer, I am told. Then he uses a national TV audience to accuse judges ‚who are present but cannot respond, of being corporate toadies. “With all due respect for the separation of powers”... you sitting before me have delivered our elections to the philistines. Then the Schumers of this world rise and clap their hands in the judges’s ears on national TV.
Again, it’s ok if the new understanding is that supreme court justices are just like members of Congress.Hell, I might even go along with that.But if that’s so, let’s damn well say so. No more deference to the courts, esp. the Supreme Court. Let all oxen be gored.
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January 28, 2010, 10:04 pmbyomtov says:
The campaign finance laws are inherently flawed because they are crafted and passed by Congress
Who do you think should craft these laws?
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January 28, 2010, 10:14 pmSwan Trumpet says:
Mr. Obama’s presidency is an embarrassment to Harvard Law School. They need to revisit their admission criteria and start weeding out the incompetents.
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January 28, 2010, 10:15 pmrpt says:
Reality check: The Obama tax cuts are real and much more broadly enjoyed than the deficit causing Bush very high end tax cuts. You may like the latter, as do the R’s and some D’s, but that doesn’t negate their disastrous effects. Sorry.
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January 28, 2010, 10:30 pmArthurKirkland says:
.
Well, it would provide more room for legacies.
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January 28, 2010, 10:48 pmCurious passerby says:
Alito for president in 2012!
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January 28, 2010, 10:48 pmProsecutorial Indiscretion says:
Reality check: The Obama tax cuts are real and much more broadly enjoyed than the deficit causing Bush very high end tax cuts. You may like the latter, as do the R’s and some D’s, but that doesn’t negate their disastrous effects. Sorry.
I’m still skeptical that giving more money to people who don’t pay taxes should be counted as “tax cuts.”
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January 28, 2010, 11:04 pmChris Travers says:
I don’t think this is a fair summary of John Marshall’s views or those of the current court. Marshall wrote that a corporation only obtained the legal protections and rights either expressly granted or incidental to its very existence.
In short there is a big difference between saying that corporations must be afforded equal protection under the laws, due process of law prior to fines being levied, and free speech (certainly in commercial settings, and I would argue in political settings as well), and saying that a corporation is afforded all the rights of a person born in this country.
Also, I noted that the Stevens dissent in Citizens United really didn’t offer an alternative decision. They just said they didn’t like the decision offered. It was the strangest dissent I have ever read.....
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January 28, 2010, 11:04 pmConstantin says:
Those multi-ethnic people are members of Virginia’s cabinet.
This criticism, making the rounds, is pretty rich coming from supporters of a president who is the biggest affirmative action case of all-time.
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January 28, 2010, 11:05 pmSarcastro says:
Keep on keeping on, Swan Trumpet! Keep calling out those liars! No need for cites, Stevens’ dissent is a pack of lies, Obama is a liar AND dumb, Law Review badamned!
In fact, it seems everyone who disagrees with Swan Trumpet, is a liar and/or incompetent!
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January 28, 2010, 11:18 pmJohn Moore says:
Obama lied.
Alito sighed.
Liberals cried.
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January 28, 2010, 11:18 pmMark Field says:
You’re not reading his statement very well. He said that he believed the ruling “will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections.” The fact that the ruling may not have affected foreign funding now is irrelevant even if it’s true.* He made a prediction.
No, there’s the alternative that you didn’t read it correctly.
I choose to believe that you’re more interested in partisanship than accuracy.
*It’s almost certainly untrue, as loki13 pointed out in another thread, but I’ll assume it is true for now.
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January 28, 2010, 11:20 pmleo marvin says:
If by “biggest case” you mean “strongest recommendation for,” then on that part of your comment we agree.
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January 28, 2010, 11:21 pmGordon Langston says:
Any combination of those could work...
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January 28, 2010, 11:25 pmo says:
he has not cut any meaningful taxes. he’s provided rebates or credits. nothing that actually spurs economic development. he’s continuing the same sort of useless manuevers with his latest small business plans... not tax cuts, but TEMPORARY credits that do NOT spur economic development.
if you want to spur economic development and get out of a recession on a good footing, cut taxes for everyone. stop trying to bleed rocks dry. you cannot continue to increase taxes on the $250k+ crowd and expect economic activity to increase. it is the $250k+ crowd that has money to invest in new economic activity, not those that receive more from the IRS than they give.
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January 28, 2010, 11:28 pmSwan Trumpet says:
Justice Stevens ought to retire. In recent talks, he’s been rambling, forgetful, and at times, almost incoherent.
As to the accuracy of my comments regarding Chief Justice John Marshall’s views that a corporation may act as a single individual, here’s the entire Marshall quote: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being a creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality; properties, by which a perpetual succession of many persons are considered the same, and may act as a single individual.”
There’s also the fact that many corporations are owned by single individuals or partnerships. They are taxed at a much higher level than individual tax rates. In 1776 we fought a revolution over taxation without representation and this is precisely what Citizens United was about. Why should a meat-packing company be prohibited from running an advertisement informing voters that the election of a vegan PETA candidate would be damaging to the company? This goes straight to the heart of the first amendment’s free speech clause. In the marketplace of ideas, political speech from all interested parties, especially those that carry the heaviest tax burden can’t be suppressed without trampling the Bill of Rights.
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January 28, 2010, 11:30 pmSarcastro says:
Yeah, Obama didn’t earn it! I know cause he’s black and I didn’t vote for him!
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January 28, 2010, 11:32 pmSarcastro says:
Yeah! Who thinks putting money in the hands of the middle class is stimulative?! You need to give it to the wealthy, who are well known as types who spend all their money!
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January 28, 2010, 11:41 pmrpt says:
As I recall the taxes of your target group were cut hugely in 2001. Things ended badly. When were these taxes increased?
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January 28, 2010, 11:53 pmArthurKirkland says:
’
What’s not to like?
Alito, although a smart and well-meaning person, would be unlikely to win. And if he won it wouldn’t be the end of the world.
Most important, his departure from the Supreme Court would generate another Obama nomination, moving the Court toward a more reasonable Democratic-Republican balance.
Run, Sam, Run!
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January 28, 2010, 11:54 pmMark Field says:
Only after adjusting for quality of competition.
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January 29, 2010, 12:24 amArthurize says:
Sarcastro–
If we’re going to debate the ruling, which was not the point of this thread, there are plenty of good places to do it. Personally I find Justice Stevens’s explanation as to why media corporations are exempt to be remarkably unconvincing (GE?).I am also puzzled at the lack of outrage at the ruling’s application to labor unions (yes, that is sarcastic). Also, law firms are very significant participants in political campaigns and many of them are corporations, you know.
But that’s another issue. The question is simply whether the president behaved appropriately or shamelessly. I know of no one who gave a damn about his condemnation of this ruling in his recent media interview,and in much stronger terms.The issue is time, place, context– and class, in the sense of conducting oneself in the proper way, with respect not for individuals but institutions.
Like most of the president’s backers, you give him a pass for what those of us who have practiced law for over 30 years were taught was not only boorish behavior, but contemptible grandstanding.Once again, if those are the new rules, fine. Let’s declare them to be that, and proceed in future SOTU’s to eviscerate rulings by name–even those of the individual justices who write them. It will be amusing to see the worm turn.
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January 29, 2010, 12:31 amDe Minimis Matt says:
Arthurize:
Where did you study, or what sort of practice have you been in for 30 years, where you’ve been working on the issue of what is, or is not, boorish presidential conduct?
If they had offered that course at my TTT, I would have taken it!!
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January 29, 2010, 2:10 amSarcastro says:
Glad former Obama supporter Arthurize can let us know what is and is not acceptable behavior, based on his 30 year study (note that all the mentions mast 30 years don’t count, natch!)
And just like it takes Nixon to go to China, it takes a clear Obama supporter to note that the Stevens dissent was clearly wrong, making Obama a liar for repeating one of the arguments therein!
How DARE Obama bring a political court decision into the SOTU! I hear he eviscerated the ruling, which is very cruel! What happened to the rule of law? IMPEACH!
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January 29, 2010, 7:14 amVisitor Again says:
Why on earth should I, or any other citizen, have any more respect for Supreme Court justices than for any other public office holder. These are extremely powerful people who can and do work much harm to the nation. They are never beyond reproach. I was glad to see the Court majority get called out by the President. In my view, they got the respect they deserved for their opinion–although I do think the criticism was fairly mild in tone. I’d like to see more robust criticism of the justices. They’re fair game in a democracy. If they can’t take it, they ought to stay home or confine themselves to attending bar association conventions and the like, where everyone toadies up to them. From some of the comments in this thread, one would think the justices were like British royalty, to be bowed and curtsied to and addressed in only the politest terms.
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January 29, 2010, 7:38 ammack says:
Whatever — this is all a tempest in a teapot — few people in the real world — struggling to keep or find work and support their families give a rats behind about this “issue.” Obama was rude to the court — not as I said the general public cares — they were vistors honoring him by attending his speech and even the average american knows that you shouldn’t be rude to guests. Still, it doesn’t matter — the Supreme Court will in the end always win in the court of public opinion if politicians try to get into a serious fight with them. Obama isn’t that stupid, he was just feeding his base, who are in a tizzy over the decision in citizens united.
The court always wins in the long run for two reasons: first people get nervous and don’t like it when they see or feel that politicians are directly trying to exert control over the third and supposedly independent branch of government — it rings warning bells in their heads — and second the court wrongly or rightly is seen as more principled and less partisian than the congress and executive branches — meaning that even if people believe that the court may have an agenda of sorts — they still believe that the justices try to comply within limits to the constitution.
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January 29, 2010, 12:12 pmJoe says:
Members of Congress often scowl or indicate quiet disapproval with a State of the Union address, and Justice Alito’s gave a natural, muted response to strong criticism, and he can be forgiven for his naive belief that it would not end up on TV.
Sigh. A core criticism, rightly or wrongly, is that Justice Alito is not a “member of Congress,” the constitutional audience of the SOTU, but a judge who has a higher responsibility. It is honestly depressing that there is so much missing the point here. You can disagree with the critics, but at least truly answer them.
Also, I respect Alito’s skills up to a point too, but again, there has been signs of bad blood already, which again, has been noted by some commentary. For instance, failure to show up when Obama made a courtesy visit to the SC. Even if this is a lesser issue to respond to, is it really that hard for him to realize, not be “naive” about, that if he is going grimace or appear to mutter under his breath, that the camera will pick it up?
Notice how justices generally “naturally” or not, manage to look judicial at these affairs. Was he really shocked that Obama would bring it up and put forth a view as some note here on the same level as the dissent? Give me a break. I really don’t care too much, though the sensitivities of the ruling really warranted Alito to take care (somehow, Roberts and Kennedy managed to do so ... are they somehow special?) not to in effect act out at the SOTU.
BTW, the criticism, including from no comment Randy Barnett, of Obama is really lame as shown by some comments from even those on this thread who have no use for the man. Oh no! He criticized the Supreme Court! And, they were there!!!! Blasphemer!
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January 29, 2010, 12:24 pmJoe says:
BTW, how was he “rude” — even without the “with all due respect,” he disagreed with a major ruling and voiced his opinion of the likely serious negative effects. He didn’t call them names or go on an extended rant. It was a paragraph of text.
This is, I’m sorry, part of the “state of the union,” and was quite germane. And, guests I assume should not be “rude” either, including grimaces or muttering when they don’t agree with their hosts.
As to some who note some inability to respond, truly silly. This after the SC overturned legislation and explained why. They also repeatedly “respond” to governmental lawyers, at times quite sarcastically, and they are a mere few feet in front of them.
Again, this is tres silly.
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January 29, 2010, 12:27 pmChris Travers says:
Ok, but that doesn’t get you to whether for-profit corporations have a right to political advertising. One can only get there by arguing that political speech is incidental to the very existence of corporations within our framework. Marshall was addressing in his opinion questions of corporate rights to engage in contracts in the same way that individuals did.
I think that political speech is incidental to the existence of a corporation. Some on this board disagree with me and don’t think any speech is. However, as long as corporations have first amendment rights to petition government, it seems untenable to argue that they don’t have electioneering rights. There are other issues as well, where electioneering and commercial speech might be mixed.
For example if I had sold “Regime change begins at home” T-shirts urging that voters reject Bush in 2004 prior to the election, why should it matter, as a Constitutional matter, whether I do this as a sole proprietorship or a sub-S corporation?
I am personally in favor of restrictions on corporate electioneering over the airwaves only (and not including satellite tv/radio). I think that such a restriction would help provide less of a capacity for large corporations to monopolize the marketplace of ideas. However, pamphlet printing, cable and satellite tv, web sites and blogs, etc. should all be entirely protected. I also think the above restriction should not include advertisements for purchasing electioneering products.
I think such a rule would be in support of a compelling state interest and it would be narrowly tailored to meet that interest.
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January 29, 2010, 12:53 pmjames says:
“who don’t pay taxes”
Never heard of a sales tax, gas tax, excise tax, food and beverage tax, or a utilities tax, I take it?
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January 29, 2010, 2:30 pmRoger Lee says:
Amazing. Since 6 of the 9 justices were present, even though most of them do not see eye to eye with the President, they clearly were given a special invitation to attend and encouraged to do so. The President’s phrase “with all due respect” meant that he knew what was coming was going to be hurtful, and Alito’s response shows he had no foreknowledge of the text. The press did, so the cameras were focused on the Justices when the statement was made. This speech was gone over in advance by the most astute politicians in Washington, so the scene was carefully calculated, including the expectation that the Justices would be on camera at the time. So basically the President b**ch-slapped the SCOTUS majority, with Members of Congress cheering him on, after inviting them as honored guests. If anyone thinks this is a good idea (and the defense “someone else did it first” is a nonstarter), I disagree. Whose interpetation of the law is more accurate is entirely beside the point.
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January 29, 2010, 4:24 pmleo marvin says:
You’d never know this is the same site where some commenters have all but advocated violence against our left-wing black robed masters.
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January 29, 2010, 4:44 pmJoe says:
So basically the President b**ch-slapped the SCOTUS majority
Lol. Seriously man, get a grip.
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January 29, 2010, 7:22 pmChrisTS says:
L know! I keep thinking, “But..but, they are the Black Robed Tyrants.”
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January 30, 2010, 1:12 pmChris says:
Except Bradley Smith’s response to the President’s accusation that ‘foreign corporations’ had been handed the ability to spend freely in federal elections is not quite the coup de grace he thinks it is.
In the strictest sense, a ‘foreign corporation’ is limited by the sections of the US Code he points to. However the important question is what the code calls a ‘foreign corporation’, and what exactly it can and cannot do.
According to 2 US Code 441e it is unlawful for a ‘foreign national’ to expend funds on an electioneering communication (essentially defined through 2 U.S.C. 434, as broadcast, cable or satellite communication used in express advocacy).
However, ‘foreign national’ (per 22 U.S.C. 611)is described in one sense as : “a partnership, association, corporation, organization, or other combination of persons organized under the laws of or having its principal place of business in a foreign country”. As such a corporation is exempt if it “is not an individual and is organized under or created by the laws of the United States or of any State or other place subject to the jurisdiction of the United States and has its principal place of business within the United States”.
The problem I see here is that a corporation may be registered under the laws of the United States, have its principal “place of business” in the United States, and still be regarded as a ‘foreign corporation’ by most reasonable observers.
Justice Ginsburg in the original argument before the Court was concerned by the potential for a corporation to make expenditures in a federal election when a large minority, or indeed a controlling majority, of its shares are owned by foreign nationals, or indeed governments (i.e. US subsidiaries of foreign corporations).
I may be mistaken, but post Citizens United the law no longer prevents this kind of de facto ‘foreign corporation’ from expending funds in support of a candidate in a federal election.
PolitiFact investigated this claim:
http://www.politifact.com/truth-o-meter/statements/2010/jan/27/barack-obama/obama-says-supreme-court-ruling-allows-foreign-com/
I don’t ultimately agree with their characterization of Obama’s statement, but when they say:
“That uncertainty could indeed provide a loophole for spending unlimited amounts of money on politics. But even that interpretation is not a slam dunk. Federal Election Commission regulations say that a foreign national cannot “direct, dictate, control, or directly or indirectly participate in the decision-making process” for spending money for political purposes, a principle that could keep the critics’ worst-case scenario from coming true, said Tara Malloy, an associate counsel with the Campaign Legal Center. What that FEC regulation means for political spending by a foreign-owned company is far from clear.”
I must say that Tara Malloy’s response is not very persuasive. FEC regs are easily side-stepped. A “foreign corporation” need not ‘directly participate’ in the process. The members of the US subsidiary need only look out for the best interests of their business, which is intricately linked with the interests of the ‘foreign’ corporation, and spend the money how they see fit.
The fact is that this is a gaping loophole. Some flimsy FEC regulation about ‘participation in the decision-making process’ will not prevent US subsidiaries of foreign corporations from spending to support the interests of foreign nationals, and foreign governments in United States federal elections. That IS a consequence of Citizens United.
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June 22, 2010, 9:37 pm