Justice Samuel Alito’s silent defense

We didn’t watch last night’s State of the Union Address because we prefer to read. By doing so it eliminates a lot of the hype and drama that seems to attend news delivery and government events in the 24/7 cycle. So when the story quickly emerged online that the President had attacked the Supreme Court’s decision in Citizens United v. Federal Election Commission in his State of the Union Address, we couldn’t quite believe it. We could not recall this sort of overt and very public display of disrespect and hostility from a President and a Congress towards the Court, especially in such a formal and traditional setting.

We believe this administration regards our U.S. Constitution with hostility and the First Amendment in particular. “Free speech for me but not for thee” seems to be their motto. We felt the Justices had protected free speech in the Citizens decision, though a divided Court would suggest some of the Justices are of the same mind as the President when it comes to considering who has freedom of speech and when. The President said he fears special interests and foreign corporations will “bankroll” our elections. Forgive us for asking, Sir, but aren’t ACORN and SEIU “special interests”? And isn’t George Soros a “bankroll”? And what about the hundreds of millions of dollars your campaign raised online from foreign donors in 2008–AFTER you’d promised Senator McCain you, too, would abide by certain campaign funding laws–but then immediately broke that promise? Or are some special interests and their bankrolls better than others?

Hypocrite? Or liar? You decide.

In this morning’s reading we discovered that law professor Ann Althouse was equally stunned by President Obama’s disrespect for the Justices and for the balance of power ensured by our Constitution. From her blog today:

Wednesday, January 27, 2010
Justice Samuel Alito mouths — it appears — “not true.”

See for yourself:

Obama is saying:

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. Well, I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.

Obama is getting a lot of criticism. But is Alito? Alito didn’t yell out his words, the way Joe Wilson did last year, and “not true” is mellower than “you lie.” One expects such rigid decorum from the Justices on these occasions that it’s really striking when a Justice is anything other than a statue of a Justice. I think that if they knew they were going to have to listen to that kind of in-your-face disrespect, they wouldn’t have done the President the honor of sitting there, providing the scenery. But they were there, and I’m not going to criticize Alito for moving his lips and letting us see a silent defense of the judicial branch of government…

What is more, this participant said, Judge Alito displayed a “street smart” New Jerseyan’s willingness to talk back to his questioners [during his confirmation hearings]….

Yeah. It was different. He came from New Jersey, he looked natural, and he was willing to talk back. Silently. But we heard it. Good.

Read the professor’s entire post at Althouse.com

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And this, from Linda Greenhouse, “Justice Alito’s Reaction” in today’s New York Times:

Supreme Court justices usually make for an awkward sight at the State of the Union speech, because they sit stony-faced and never clap or cheer. Some members of the court dislike the exercise so much that they never attend. Justice Sotomayor’s predecessor, David H. Souter, never did. For several years, Justice Breyer attended alone.

This time, Justice Alito shook his head as if to rebut the president’s characterization of the Citizens United decision, and seemed to mouth the words “not true.” Indeed, Mr. Obama’s description of the holding of the case was imprecise. He said the court had “reversed a century of law.” [Emphasis CAJ’s]

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…

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Law professor Glenn Reynolds included several articles about the President’s attack in his blog Instapundit:

And from Prof. Randy Barnett:

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 [of] 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.

It’s the usual Chicago approach to criticism, I’m afraid.

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