The Only Thing Between Me and Your Throat is the Constitution
Above the Law is running this, too, but it is too startling to let go without a post.
Those who watched the State of the Union tonight saw something remarkable -- something you wouldn't pick up on just by reading the transcript of Obama's words regarding Citizens United:
Is that not the same tone of voice he uses to tell Sasha and Malia they can't eat all their Halloween candy on the first night?
The clip left me feeling incredibly uncomfortable. Watch Justice Alito straighten, shake his head, and then say "not true." Watch as he continues to shake his head while the audience gives a standing ovation, towering over the justices as they quietly sit and take it. If you have read the comments on the thread below, you know what I think about the decision. I think it was rightly decided as a matter of the First Amendment, but wrongly decided as a matter of stare decisis. The Roberts Court, as far as I am concerned, just lost any legitimate claim to deference or judicial restraint. I realize that is not why the crowd took to its feet and that's not why most people are disturbed by the Court's decision, but nevertheless, I find that clip gratifying and grating at the same time.
. . . not, "with all due deference to the Court's reasoning," and not "with all due deference to the Justices sitting before me," and not "with all due deference to opposing views" . . . but "with all due deference to the separation of powers." The only thing more blunt woud be if he had said, "you lie."
Those who watched the State of the Union tonight saw something remarkable -- something you wouldn't pick up on just by reading the transcript of Obama's words regarding Citizens United:
It’s time to put strict limits on the contributions that lobbyists give to candidates for federal office. 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.Sounds pretty deferential, no? Now, watch the video and listen to the President's intonation:
[Pause for applause.]
I don’t think that American elections should be bankrolled by America’s most powerful interests, or worse by foreign enemies; they should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps correct … some of these problems.
Is that not the same tone of voice he uses to tell Sasha and Malia they can't eat all their Halloween candy on the first night?
The clip left me feeling incredibly uncomfortable. Watch Justice Alito straighten, shake his head, and then say "not true." Watch as he continues to shake his head while the audience gives a standing ovation, towering over the justices as they quietly sit and take it. If you have read the comments on the thread below, you know what I think about the decision. I think it was rightly decided as a matter of the First Amendment, but wrongly decided as a matter of stare decisis. The Roberts Court, as far as I am concerned, just lost any legitimate claim to deference or judicial restraint. I realize that is not why the crowd took to its feet and that's not why most people are disturbed by the Court's decision, but nevertheless, I find that clip gratifying and grating at the same time.
. . . not, "with all due deference to the Court's reasoning," and not "with all due deference to the Justices sitting before me," and not "with all due deference to opposing views" . . . but "with all due deference to the separation of powers." The only thing more blunt woud be if he had said, "you lie."
posted by Patrick Bageant at 10:59 PM
26 Comments:
I think Obama's phrasing was actually right on.
Obama's position on this is clear--he disagrees with the Court's interpretation of the law, and believes the existing statute, passed by Congress, is constitutional.
What he is really saying is: "I understand that the Court and not the President is considered the final interpreter of the Constitution. But even though this is not my role, I think they got the law wrong."
I read somewhere and found myself agreeing with the idea that the Justices get the insulation of their highly private process and lifetime appointment, and the President gets his bully pulpit and microphone to the nation. You win some, you lose some - that's how the process works.
But really, if the Justices truly think they're correct on this, they should be more than willing to take their licks on it, from the President or otherwise, and in the State of the Union or elsewhere. Surely there have been some leaders out there who had some choice words for the Brown Court and any Court that has upheld Roe.
I don't really see this as a separation of powers issue or an instance where the differences of those powers are highlighted. Yes, Obama is well within his presidential prerogative to use the bully pulpit to call out SCOTUS. However, just because he can doesn't necessarily mean he should, at least in this instance. Especially during a speech that extolled the virtues of cooperation, "changing the tone", and all that wonderful "can't we all just get along" rhetoric, a swipe at another branch of government seemed a bit jarring. The justices are invited guests and should be treated as such. The President should not use the State of the Union address as an opportunity to insult the justices while they must sit passively and accept the criticism. It shows a decided lack of class, and it belies Obama's whole little post-partisanship schtick.
I think Alito looked like an asshole by making any kind of reaction. It was an uncomfortable moment, but the SC needs to stay above the fray and look completely disinterested in what people think of their opinions.
Also, he seems to mouth "simply not true" on the line "this will open the floodgates for special interests." Is there a reason that would not be true?
Dan, I do there are at least two legitimate reasons Alito could think that is not true.
First, in order to conclude that Citizens United opened floodgates of corporate political spending you have to believe that up until now, McCain-Fiengold was the only thing holding them back. There are, of course, many other considerations. First, corporations always had influence on elections through PAC's. Second, corporations are not going to spend with absolute abandon -- they are still corralled by the market, by their duties to the corporation's well being, and by the bottom line. The wiseness of a political investment depends at least in part on how well it will be received by the public. Corporations know that.
Second, even if corporate speech boomed it shouldn't be taken for granted that the speech will be homogenous. Corporations are not in any sense unified when it comes to political causes. Some corporations want to do everything they can to facilitate green energy, because they are banking on a paradigm shift. Others want to do everything then can to prevent or delay that paradigm shift from happening. It is obviously true that most corporations share common interests, but it is false to conclude that every corporation shares every interest, or that all corporate dollars will be spent in harmony.
I'm aware of those arguments, but they don't seem concrete enough to justify calling what the President said "untrue." Special Interests will undoubtedly play a larger role in the future. You can disagree with the use of "floodgates," but again, it doesn't seem flagrant enough to justify Alito's reaction.
He should have mouthed 'you lie' instead.
10:13,
So the President should not use the State of the Union, his most important annual speech to the nation, to mention why he thinks the Supreme Court got something wrong? Because they don't get an opportunity to respond in that forum?
Look, the Court got their say in the opinion, and I don't recall seeing a dissent by Obama in the published opinion. Unlike the Court, the President addresses the nation through speeches. If he disagrees with something the Court did he has every right to say so.
So the President cannot criticize the Court in public, everyone who turns in their assignment on time deserves at least a B, no matter how poor the quality of the work, and we cannot keep score in youth soccer matches, because everyone has to win?
This post strikes me as the conservatives winning while continuing to try and play the victim card.
So let's play a little game. Let's imagine that Bush is giving his State of the Union address and says something to the effect of "The Supreme Court, in it's recent decisions concerning enemy combatants, has overturned one hundred years of precedent and has put America at greater risk of attack by terrorists." I'm pretty sure that all the people cheering Obama on here would have been up in arms over Bush's arrogance, disrespect of the judiciary, tradition, blah, blah, blah.
I'm all for Obama pointing out where he thinks the Court went wrong, but I think he chose an inappropriate way, and an inappropriate forum, to do it. Last I checked, presidents have always disagreed with at least some SCOTUS decisions, but I can't remember any of them taking the Court to task for it via the State of the Union address.
SOTU on SCOTUS over the years. In any case, gosh forbid a POTUS should go maverick and deviate from the script. Must have been a slow news day yesterday.
This was not a momentary lack of tact by the president. This was not a reference to the Special Olympics. This was a purposeful (and tactically smart) move by the president. Obama will have to replace at least one, and probably two, justices in the next three years (Stevens has hired only one clerk for 2010/11 -- see http://www.lawclerkaddict.com/appellate/supremecourt/stevens).
Obama needs a justice who will challenge the credence of the "School of Scalia." Currently, both sides in many cases get roped into Scalia's textualist game (see the majority and dissent in Heller and every Chevron case). Obama needs someone who is not willing to play this game.
But how can he get such a justice confirmed, if the Republicans are sandbagging even his moderate nominations? So far, the president has had a terrible time getting judges -- at all levels -- confirmed by the Senate. David Hamilton was confirmed 59-39, with Lugar the sole Republican confirming vote. Sotomayor -- who appears to be a Breyer-type centrist -- was confirmed 68-31. Magistrate Chen is currently in confirmation limbo, due to his early career with the ACLU.
To do this, Obama has to take on the Supreme Court, and characterize the Court as an out-of-touch political body making bad decisions. The only way he'll get the one or two votes he will need is by playing the game the Republicans have been playing forever.
2:08 FTW
I agree with 2:08. The president did precisely what presidents ought to do: use the office to interpret and promote their preferred interpretations of the Constitution's meaning.
Yes, of course it's the province and duty of the courts to say what the law is -- but judges/justices aren't the *only* ones who get to say. I'm surprised anybody finds this shocking.
I didn't find it shocking, but I was very startled. Unlike the rest of his address, the message the President sent to Congress with respect to Citizens United was not "let's move past the partisanship and work together." It was more like "Congress, it is us against the Supreme Court." That is derisive and aggressive. Of course the President can (and should) share his views on the Court with the public. But considering the context, I found the President's delivery substantially short in the tact department.
If it fell short in the tact dept, I'm glad. His tactfulness up till now hasn't made him any friends on the Right. It's about time he try another, brawnier strategy.
11:54,
You are wrong about that. Sure, some people might be whining about Bush doing the same thing, but not everyone. It is really pathetic that your only refrain is "you wouldn't say the same thing if the situation was reversed."
The State of the Union address is the President's opportunity to state his case. The Court had the opportunity to state their case in the opinion. All the President said was that he disagreed with the Court's outcome. Is he really not even allowed to do that without you getting all pissy?
4:02,
I think that's precisely the point. You can criticize the Court, but you can only do so with all due deference while stroking lovingly the locks of RBG, lest she fall asleep.
And The Obama once again shows his brilliance. I can't think of a better way to piss of the justices than to call them out in the SOTU. This guy is just all about winning friends and influencing people isn't he? I expect that there might be some subtle (and perhaps not-so-subtle) "F*$# You Too Buddy" opinions in response to this. Well done sir, well done.
I think other commenters have put it well already: Obama wasn't saying "Congress, it's you and me vs. them," but rather "I know it's not my place to interpret the law, but the Justices disregarded good precedent."
Yeah, because before this comment, Alito and Scalia just loved Barack.
Just for fun: look at the opinion, rather than opining on the style and place of the POTUS's statement. Then, ask yourself whether the statement was accurate. Remember: the statement was not that "foreign owned US subs" may now contribute unlimted funds ...
Why hasn't anyone noted that the decision did not overrule 100 years of precedent? O misrepresented the decision, and Alito's reaction may have been almost involuntary.
You're right, 1:32. Alito was reacting to the "one hundred years of precedent" comment, which was plainly false. *Citizens* overruled *Austin*, which is 20 years old. *Austin* ran in the face of, if not directly overruling, prior precendent that held the opposite viewpoint, i.e. that corps were entitled to the speech rights that natural persons are entitled to (*Belloti*).
*Citizens* was about political speech rights, not campaign contributions (which the "100 years" comment relates to). Obama either deliberately mischaracterized the decision, or he felt it was appropriate to get up in the SOTU and criticize SCOTUS to their faces without having actually read the opinion or spoken to someone who actually read the opinion. I voted for the guy, and will do it again, but that is a bit shameful for a former con law prof.
I hope they win.
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