Who Dissed Whom?

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?

Some headlines today say that the Justice “dissed” the President. There have been some comparisons between Alito’s “not true” and last year’s Joe Wilson “you lie” episode.

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.

Still, Bradley A. Smith at NRO has the vapors.

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 — including foreign corporations — 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.

Update:I just Remembered Chris Matthews Was White

10 thoughts on “Who Dissed Whom?

  1. Nice closing remarks. I doubt the President will use this as an opportunity with some proclamation of victimhood. I doubt most of the left will either. Let’s see where the litany of righteously indignant “I’ve been maligned” comes from and find some consolation when these types of rallying cries are working less and less all the time.

  2. I’m glad Tweety is working through his race issues, I just wish he wouldn’t do it on national TV.

    As for dissing the Court, give me a break. If the Court is going to go out of its way to make radical decisions that have wide-ranging implications for our politics going forward, it should be prepared for feedback. Since they are sheltered from accountability by lifetime appointments, I think having to sit through a little public exposure to the reaction to their decision isn’t very much to ask.

    Randy Barnett needs to grow up. And if any of the Justices actually took the umbrage Barnett is so concerned about, that person needs to just “Justice up.”

  3. I’d really like Alito to explain why he thought President Obama’s comment warranted an eye-roll.

    Something else that’s nagging at me is that, even though a corporation may be based in the United States, this does not mean that the major stockholders are United States citizens. Admittedly, my knowledge of the market is pitiful, and my stock holdings are so small you’d need a magnifying glass to see them; nevertheless, from time to time I am given an opportunity to vote my shares with regard to policies and acquisitions. (In fact, immediately following the TARP bailout, was required — yup, actually required–to cast yay or nay vote as to whether or not Wells Fargo could buy up a mutual fund in which I owned a tiny number of shares.)

    So this seems to raise a Constitutional issue here. If I am a citizen of another country, and I own stock in a corporation that has now been granted personhood by SCOTUS, and further, since I am allowed to vote my shares, doesn’t this mean I have the right (and the ability) to influence U.S. elections on a scale far greater than an individual U.S. citizen? Doesn’t that kinda make us second class citizens in our own country?

  4. If Justic Alito was secure in the rightness of his recent vote on the Court, Obama’s remark would have rolled right off his back. Alito’s reaction would indicate otherwise.

    I found the faces and demeanor of the attending Republicans last night to reflect what they’ve been since Obama was sworn into office – pouting, petulant children threatening to pick up their marbles and go home if the Dems don’t allow them to win. Like the kid who pulls that crap one too many times, perhaps the voters won’t invite the Repubs over to play anymore. Probably a pipe dream, but wouldn’t it be swell.

  5. Shouting out “lie!” is one thing but a shake of the head, a grimace is okay with me. I’d hate to see us all turn into polite, uncaring robots. And for one branch of government to take on another? Isn’t that kind of constitutional?

    Someone — please god — needs to take on the Supreme Court. Even if I were a Bush supporter (no way), the Supreme Court’s willingness to rule in Bush v Gore showed a Court dominated by narrow, pettish intellects.

    The Citizens United decision is just another of many Constitution shredders. I’d like to see a clear-headed writer — Jeffrey Toobin would be okay but, well… Barbara? — pick up the sword-shaped pen and write a blast about the indignities of the Supreme Court over the past hundred years. We really need an exorcism.

    FYI: Linda Greenhouse, the NYTimes’ longtime Court analyst, looks at Alito’s headshake and clarifies the quibbly cause:

    Indeed, Mr. Obama’s description of the holding of the case was imprecise. He said the court had “reversed a century of law.”

    The law that Congress enacted in the populist days of the early 20th century prohibited direct corporate contributions to political campaigns. That law was not at issue in the Citizens United case, and is still on the books. Rather, the court struck down a more complicated statute that barred corporations and unions from spending money directly from their treasuries — as opposed to their political action committees — on television advertising to urge a vote for or against a federal candidate in the period immediately before the election. It is true, though, that the majority wrote so broadly about corporate free speech rights as to call into question other limitations as well — although not necessarily the existing ban on direct contributions.

    But this was a populist night and the target was irresistible. There are a variety of specific proposals floating around to address the Citizens United decision. The president offered no specifics and did not endorse any of them. Just as the decision doesn’t lend itself to a sound bite, neither do the fixes.

  6. If Justice Alito was secure in the rightness of his recent vote on the Court, Obama’s remark would have rolled right off his back. Alito’s reaction would indicate otherwise.

    Amen. Let’s remember that Alito’s the guy who failed to recuse himself from a case in which he had money invested with one of the parties. That was a gross error that should have prevented his SCOTUS nomination from going forward… and would have embarrassed anyone with a sense of right-and-wrong that isn’t completely off-kilter.

    That said, Alito can shake his head and “mouth” anything he wants, for all I care. His record will always be out there, and it’s not passive-aggressive; it’s damning.

  7. The recent quibble over whether the SC decision excludes or includes foreign entities from influencing our elections prompted me to recall the following.

    A few years back we Californians voted to require cars sold here to reduce greenhouse gas emissiions 30 percent by model year 2016. Nine global automakers sued us to block what we had voted for. A majority of the shareholders of at least 7 of those automakers weren’t even American citizens. (If only people rather than companies could sue and to sue required citizenship, this kind of practice couldn’t happen.)

    Obama’s comment last night regarding the recent Alito etal decision was right on the money (sorry about that.)

  8. The argument underscores in my mind that Obama IS a Constitutional scholar. The portion of the law that was a direct violation of free speech could have been struck down without making the declaration that money IS speech.

    The implication of the ruling is that an individual with 1000 times the wealth of the average guy is entitled to 1000 times the free speech of the average guy. And the coproration with 1 million times the wealth – can drown out the voice of the average citizen entirely.

    Obama (I think) was suggesting that Congress pass carefully crafted legislation that WILL pass a Constitutional test – one that’s NOT an overt violation of the first amendment and (when tested by the court) should pass the review of the SC and affirm the right of the legislative branch to limit contributions by persons and corporate entities. I can think of no better way to establish your integrity – that you are NOT a corporate-owned congresscritter- than to co-sponsor that legislation.

    Ultimately, this may come down to SC appointments. As I read it from court-watchers, a liberal SC justice is due to step down, but it will take the retirement of one of the conservative justices to reverse this decision. If Obama has 2 terms that becomes VERY possible – if he has only one term, a conservative may wait it out to see if President Palin wins – to make an ultra-wingnut appointment. Progressive Obama bashers who don’t see any difference between the POTUS and Bush , should look again – if ONLY fot appointments to the bench.

  9. the only thing that is not true about this decision is that it is better then the Dred Scott decision. Alito’s appointment to the court had more to do with ideology then judicial compidence.

  10. This wasn’t a question and answer program. Everyone was there to listen, not comment. Do you think for one minute that Alito would have allowed that in his court? Contempt charges come to mind….

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