Wouldn't Alexander Bickel Be Smiling Today?

Calvin Massey says that the President was showing "puerile anger" last night in criticizing the Citizens United decision in the presence of six of the nine Justices.

Ann Althouse sees it this way:

I think that if [the Justices] 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.

These comments reflect a different understanding of the place of the Supreme Court and of judicial review in our democracy from the one I teach.

What I teach is that the common image of the life-tenured, salary-protected Court as an institution apart from politics and insulated from accountability is mistaken.  I teach that one way to soothe concern about the "countermajoritarian difficulty" of judicial review is to recognize that the other branches of government -- the elected representatives of "We the People" -- can and sometimes do let the Court know when the Court has, in their view, gone astray.  On that view, the President's choice to criticize Citizens United in the Justices' presence was an unremarkable illustration of a healthy process.  If the President had called the Justices names, or mocked them, that would be a different story -- "puerile anger" and "in-your-face disrespect."  But he didn't do that.

Like Ann, I am not going to criticize Justice Alito for failing to sit there like a robot while his work was very publicly criticized, like the Chief Justice and Justice Kennedy did.  They're human beings.  I don't think that Justice Alito believes the majority did undermine one hundred years of precedent, and while we're accustomed to the notion that courts speak only through their opinions, I kind of like that Justice Alito reacted the way you'd expect a non-robot to react.

But unlike Calvin and Ann, I'm also not going to criticize the President for taking, rather than passing up, the very rare opportunity to give the Court a piece of his mind in a setting where We the People can all see him doing it.

Comments

[Lance]

Two issues are at work:

(1) Should Obama have criticized the Court given the circumstances and settings?

(2) Did Obama substantially mislead the American people as to the actual ruling of the Court (in particular the whole "foreign countries buying American elections" bit)?

Reasonable people can disagree on the answer to #1, but the answer to #2 is an unequivocal yes, and for that, Obama should be criticized heavily.

[Aaron]

While it's certainly true that Citizens United did not reach the explicit statutory limitations on foreign corporations, I think its an oversimplification to insist that foreign corporate interests are not freer to influence elections that they were before the Court's decision. The line between foreign and domestic corporations is one that is easily gamed. Is a fully owned subsidiary of a foreign corporation, with of course a Delaware PO box, a foreign or domestic entity? I think a fairly strong defense of the President's comments can be made on their substance, Beyond that, Alito's reaction started well before the President uttered the word "foreign." And perhaps being called out in public is the price the Court pays when it engages in overtly political decision making.

[Steven Lubet]

President Obama's comment was specifically in the context of calling on Congress to pass legislation that addresses the Citizens United holding. The State of the Union Address is always used to propose legislation.

Does Calvin think that it is wrong for Congress to legislate in the wake of SCOTUS decisions? And if it is not wrong to address decisions through legislation, why is it wrong for the President to make such a request in the State of the Union Address?

At a minimum, it would seem that the Citizens United Ruling calls for some redefinition of foreign corporations, probably by amending section 441e.

[Stuart Shiffman]

President Obama spoke forcefully and openly about a Supreme Court decision that directly impacts the other two branches of government. He also addressed concerns that many have raised. His attack was appropriate and far more honorable than other Presidents who slyly attacked decisions on school prayer and abortion.

Justice Alito was also within his rights to react as he did. His conduct reflects not upon his judicial temperment, but upon his own thin-skin.

[Patrick]

The Court ought to feel some sting when it reverses its precedent -- particularly this Court (and I'm looking at Alito and Roberts in particular), which has made such a to-do about stare decisis and the rule of law.

The President, of course, can share his views just on that issue. But the State of the Union address was neither the place, nor the time. The State of the Union is an address from the President, to Congress. Not the President to the Justices. Obama's statement was a rebuke. He did not say "the court has declared the law is x," he said in effect, "the Court has overruled a century of precedent and opened the floodgates to political corruption." He's entitled to that position, and he is entitled to speak, but as a matter of tact his delivery was poorly executed. His statement startled me, sandwiched, as they were, between so much rhetoric about non-partisanship, cohesiveness, and the need to do away with derisive government.

[Joe]

I predict no justice will attend the SOTU next year.

[John]

Calling President Obama's criticism of the Court's decision an 'attack' is reaching a bit far. Calling it undignified or a moment of 'puerile' anger is also going a bit far. The irony, of course, is that Mr. Massey's posts are attacks themselves.

Mr. Obama addressed the Court's decision. There is nothing to say he cannot do so. He disagreed with it and criticized the resulting campaign finance mess.

Mr. Massey further states that Mr. Obama didn't get his facts straight. Mr. Massey is wrong.

The Court struck down 2 USC 441a, but it used reasoning that may logically extend to 2 USC 441e. The question of whether foreign companies can donate will have to be revisited, and this is recognized in the dissent.

My point in this comment is that a dignified criticism of the President's speech would have addressed the history and type of decorum during State of the Union speeches and the shallow analysis of a complicated legal decision on a complicated area of law. Something along those lines would have been professorial.

Instead, we have an attack-in-kind and another, equally shallow analysis of the law.

I appreciate Eric Muller providing a well-reasoned counter-weight to Mr. Massey's to Mr. Massey's quick rhetoric. Mr. Muller has it right: Why criticize either party?

I also appreciate Mr. Muller's willingness to accept and face comments, unlike the closed comment section on Mr. Massey's post.