I missed it last night, but when President Obama brought up the Citizens United case during last night’s SOTU address, Justice Alito shook his head and mouthed, “not true.” Exactly what wasn’t true is a matter of some dispute, but I’ll come back to that later.
This morning the the question that has become a partisan litmus test is, was the Justice being rude to the President? Or was the President being rude to the Justice?
According to others, however, the chief executive was being way too
uppity disrespectful toward the Judicial branch. According to Randy Barnett, a professor at the Georgetown University Law Center,
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 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.
To answer Professor Barnett’s questions, apparently presidents have called out the Supreme Court during SOTU addresses before, although it’s certainly very unusual. According to Tony Mauro of the BLT: Blog of the Legal Times,
In 1988 President Ronald Reagan made an indirect jab at the Court’s school prayer rulings when he said, “And let me add here: So many of our greatest statesmen have reminded us that spiritual values alone are essential to our nation’s health and vigor. The Congress opens its proceedings each day, as does the Supreme Court, with an acknowledgment of the Supreme Being. Yet we are denied the right to set aside in our schools a moment each day for those who wish to pray. I believe Congress should pass our school prayer amendment.” In the same speech Reagan also urged the Senate to confirm Anthony Kennedy to the Supreme Court — the very justice whose handiwork in Citizens United Obama was criticizing.
President Warren Harding in 1922 also urged passage of a constitutional amendment to counteract Supreme Court rulings — the decisions that placed child labor “outside the proper domain of federal regulation,” as he put it. Harding added, “We ought to amend [the Constitution] to meet the demands of the people when sanctioned by deliberate public opinion.”
An alert reader notes that in his January 1937 State of the Union address, Roosevelt criticized the Supreme Court without using those words. Upset that the Court had thwarted his efforts to pull the nation out of the Depression, Roosevelt a month later introduced his ultimately unsuccessful “court-packing” plan that would have allowed him to expand membership of the Court and add justices of his own choosing. Here is what Roosevelt said in his State of the Union address: “The Judicial branch also is asked by the people to do its part in making democracy successful. We do not ask the Courts to call non-existent powers into being, but we have a right to expect that conceded powers or those legitimately implied shall be made effective instruments for the common good. The process of our democracy must not be imperiled by the denial of essential powers of free government.”
So while the President may have spoken a bit more plainly and directly than presidents have in the past, what he said was not completely unprecedented.
Tonight the president engaged in demogoguery of the worst kind, when he claimed that last week’s Supreme Court decision in Citizens United v. FEC, “open[ed] the floodgates for special interests â€” including foreign corporations â€” to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.”
The president’s statement is false.
Um, maybe not. Zachary Roth, TPM Muckraker:
The ruling affirms that corporations, like individuals, have a free-speech right to spend unlimited amounts from their general treasuries on ad campaigns that support or oppose political candidates. It’s true that foreign nationals are currently prohibited by law from making independent expenditures in U.S. elections. But that prohibition has little teeth. According to experts, it doesn’t apply to foreign-owned corporations that incorporate in the U.S., or have U.S. subsidiaries — meaning most foreign multinationals likely aren’t covered. So there’s “essentially no difference” between domestic and foreign corporations in terms of their ability to pump money into U.S. elections, says Lisa Gilbert of U.S. PIRG — a view backed by several other advocates of increased regulation.
I don’t understand how anyone with even a rudimentary knowledge of today’s global economy doesn’t know that corporations straddle national boundaries and can have global memberships. One wonders if Sam Alito goes to work in a horse-drawn buggy.
And while I think the Supremes owe the American people an apology — even a Jimmy Swaggart-style public groveling — I don’t think the President and the Justice owe apologies to each other. They’re both big boys. They can take a little dissing.
Also worthy of note: Tweety’s WTF Moment.