The Alito Brouhaha

I’m fairly annoyed by the brouhaha that has erupted over President Obama’s deeply inaccurate attack on the Citizens United decision.  One of the weird aspects of my annoyance, though, is that I find myself in deep disagreement with one of my favorite libertarian legal minds, Randy Barnett, and one of my favorite liberal legal minds, Jack Balkin. 

My general feeling on the matter is that clearly Obama has strong feelings about the correctness of the Court’s decision in Citizens United.  As much as I may find the hyperventilating over that decision silly, I can’t deny that the passions it has engendered are real.  Of course, I also have no idea what kind of a legislative fix Obama could possibly have in mind, but that’s neither here nor there.  The notion, advanced by Barnett, that such attacks are unprecedented is simply untrue, even if Obama’s attack was unusually harsh and, insofar as he mischaracterized the actual holding in the case, highly inaccurate.  The fact is that, like it or not, Supreme Court decisions have long been fair game for politicians to attack, particularly when those politicians want to overturn the decision via a legislative fix.  If the goal of the State of the Union is for the President to set the agenda for the year, then there’s no real reason to demand that the President avoid discussing parts of his agenda that involve overturning Supreme Court decisions. 

But this brings me to Balkin.  In refuting Barnett’s broadside against Obama, Balkin cites to a long quote from FDR’s 1937 State of the Union address.  Balkin points out that FDR spent fully a quarter of that State of the Union delivering a blistering attack on the Supreme Court’s repeated overturning of various New Deal programs.  Unfortunately, I cannot think of a worse example to show the appropriateness of a President attacking the Court than FDR’s 1937 State of the Union.  That attack was more than mere words, and more than merely attempting to chastise the Court for a decision the President found problematic.  Instead, its line that “means must be found to adapt our legal forms and our judicial interpretation to the actual present national needs of the largest progressive democracy in the modern world,” was a veiled threat to the Court’s political independence.  This veiled threat became overt just a few weeks later when FDR introduced the Judiciary Reorganization Bill of 1937 – better known as FDR’s court packing scheme.  Shortly thereafter, Associate Justice Roberts changed his voting habits in the “switch in time that saved nine.”

Nonetheless, the fact is that Presidents and legislators have been viciously and publicly attacking the courts for a very long time, whether it be over Roe v. Wade, Ledbetter, Terry Schiavo, or Dred Scott.  Sometimes they’ve been right, sometimes they’ve been wrong, but as long as we insist on viewing the President as the nation’s agenda-setter, the judiciary’s actions are fair for the President to attack with that agenda.

On the other hand, judges – even Supreme Court justices! – are human.  One might even imagine that they take pride in their work and care pretty deeply about what they do.  So when the President stands up just a few feet in front of a Justice and announces to the entire nation that his work product is actively evil, while misrepresenting what that work product actually said and did, it’s perfectly understandable that the Justice might exhibit a little emotion in their expressions, and maybe mutter some things under their breath. 

That’s not to say that I think it’s a good thing that Alito was caught on camera expressing that emotion – it’s not.  Regardless of whether we expect judges to forget their humanity, we do invest quite a bit in the notion that federal judges are supposed to be politically independent.  Yet the State of the Union is an inherently political event, and not only inherently political, but also inherently partisan.  Any appearance of taking sides during that event cannot be good optics for the public’s perception of judicial independence, whether or not the judge’s actions in creating that appearance are completely understandable and appropriate.  So to me, then, Alito’s mistake wasn’t in reacting the way he did – it was in attending an inherently political and partisan event like the State of the Union in the first place.

UPDATE: An exit question on Citizens United:  Let’s say a guy sees a big market for T-Shirts that say “Cut Bait With Senator Wormtongue.”  Because he wants to run this as a business, he incorporates to take advantage of limited liability.  The resulting corporation then seeks to market his wares on TV, the radio, or in print – whatever.  Should it be prohibited from doing so, given that it cannot market its product without advocating the defeat of Senator Wormtongue?  More importantly, should potential voters be prohibited from hearing such advocacy simply because the sponsoring entity is incorporated?  That is essentially the question that was before the Court in Citizens United.