Justice Alito's State of the Union Dissent

In case you missed it, here's a video clip that shows Supreme Court Justice Samuel Alito's reaction to President Barack Obama's remarks about the Citizens United v. FEC decision last night:

As you'll see, Alito started shaking his head while Obama was talking about the Court reversing a "century of law" and in so doing will "open the floodgates" of corporate spending in campaigns. If it was the first part of the sentence Alito objected to, it could be argued that he has a point: the Court did not go back a century to overturn the Tillman Act of 1907, which bars direct corprate contributions to candidates. Instead, the Court struck down statutes of more recent vintage affecting independent expenditures -- legally different from direct contributions -- by corporations.

If Alito was objecting to the "floodgates" imagery, that remains to be seen. Some commentators have suggested that corporations, not wanting to irritate shareholders and customers, might not throw their money around lavishly in partisan campaigns. Others say that if a door -- or floodgate -- is opened that will allow corporations to exert greater influence over candidates, they will inevitably rush through. 

Alito might also have been objecting to Obama's reference to foreign corporations being among those whose money can now start flooding into campaigns. Citizens United explicitly declined to rule on foreign corporations separately, suggesting that government might have a more compelling interest in regulating their expenditures than in checking domestic corporations. Our posts on the references to the Supreme Court in Obama's speech last night appear here, here, and here. The BLT also ran several posts on  other parts of Obama's speech with ramifications for lawyers and lobbyists.

Comments

[Biff Creagan]

The Represenative who yelled "liar" at the President during his speech to Congress on the health care bill was soundly and correctly critized, not because he exercised his right of free speech and was probably correct, because he was disrespectful to the President in the forum at which the President spoke. The President was very disrespectful to the Justices by giving his opinion (faulty on the facts) in the forum in which he was giving his SOTU address. The Congressman apologized!!! I'm waiting Mr. President................

Biff

[Pepper Di]

Knee jerk reaction by president Obama. He has done this before and comes out smelling pretty immature. He took advantage of being the only speaker...pretty cheap shot and it did not go over too well.

Was president Obama ever a lawyer in court, did he ever conduct law in a court, was he ever a judge? The way he conducts himself, I do not think so.

[Janelle]

How can the American People, who are bleeding financially because of the theiving and irresponsible actions of the previous administration, large banks, corporations, etc., be expected to compete financially with these same banks and corporations who financially raped the American People in the first place? Judge Alito and the other 4 Supreme Justices who voted with him to give these same wealthy, special interest groups the incredible power to again rape America, ought to be ashamed of themselves. As one American Citizen, these justices do not come anywhere near to representing my needs at all! Also, as an American Citizen, I am entitled to be disgusted and to ask for your resignations.

[William Prince]

Obama's action in his unstate of the onion jaw flapping 7000 words and an hours waste of everyone's time...was the "ultimate" in being disrespectful to the Justices, to Americans of dissent and contrarian opinion. It is scathing breach of courtesy and true statesmanship ( ugly as it was ) for the kid from Africa to assault men of position and integrity on the Supreme Court, starting "with all due respect" when he intended and gave none. It is unfortunate that the POTUS has lost his vision and taken the lowest of roads... but then we need to consider his lack of true breeding, and the fact that he is simply a pretender...a name changer, a gamer and a political sociopathe. He can be removed by impeachment or recall, sooner that 2012, otherwise rally the vote to assure all America that we gave the AA a chance. Afterall, as Chris Matthews said after the speach, "For an hour I forgot he was black" http://www.youtube.com/watch?v=GgWg94lO4Fo

[Russell Beck]

It is unfair to to expect that a SCOTUS justice sit and be reprimanded in public for a considered opinion protecting the freedom of speech and not react. If POTUS wants to criticise the decision, do it in another venue. Don't disrespect the justices while they are acptive audience.

[Ron Ames]

Decisions are interpreted after they are made. While the majority in the opinion opined that foreign governments would not be allowed to contribute, the minority opinion opined that the statutes involved would be so interpreted. If the Justices themselves disagree on the results of future interpretation, a Constitutional scholar and professor of Constitutional law (Mr. Obama) would certainly not be out of bounds siding with the minority's opinion.

[Pat]

dr. anthony, if what you say is true, then why is it that time and time again, decisions come down the same way as the political beliefs of the supreme court justices? I refuse to believe it's coincidence.

In addition, the way the justices are appointed in this country is very much based on a political process, so it shouldn't come as a surprise that President Obama would disagree with a decision made by a conservative judge who was selected by former President W. Bush.

Unfortunately for the majority (based on the last presidential election), the supreme court now leans republican (not the same as conservative!), so decisions like this one are not surprising, and it might take an entire generation for things to change.

[Roger]

Obama wouldn't get those kind of reactions if he would stop making exaggerations of what is true.

[Ed Cabanas]

Worth repeating;

The issue is separation of powers. The President's preface: "With all due respect to separation of powers," reminded me of that oft repeated scene in THE SOPRANOS when anyone who was about to lambast TONY prefaced with: "With all due respect TONY." The President's preface functioned as an admission on his part that he was either going to cross or come right up to that line that separates the Executive from the Judicial branch of government. But the President did not limit himself to encroaching upon the Judiciary's purview, he threatened that unless the Legislative branch gave him what he wanted, he would issue an Executive order, essentially circumventing the purview of the Legislative branch. Keep in mind that the bully pulpit is never more potent than during the State of the Union address. I think Justice Alito, and others, felt the encroachment upon their purview and reacted with disdain over the implicit arrogance and disrespect that accompanies such an act by a sitting President. "With all due respect Mr. President....you were out of line."

Posted by: dr. anthony | January 28, 2010 at 10:54 PM

[The Kid]

The question is did they interpret the constitution correctly. The problem is when Corporations were given rights in the early 1900s. The beginning of the end came when those companies lost amy morals and were being run by MBA bean counters.

[Robert Therrien]

the supreme court was again trying to make law. Now congress must take the time to make new laws that will stop corporations and the rich Americans and foriegners from buying elected officials votes in favor of legislation they want. I would personnaly limit donations to $200 a person or corperation, corporations cannot donate in the name of their employee's, and $250 a plate for dineer fund raisers that allow middle class Americans pricing that they can afford to pay in support of their candidate.

[Bill M]

Enlightened people of the country, lend me your ears. President Obama should ashamed of his show of disrepect for the highest court in the land. Disagreeing with the court's decision is one thing (and can politely be mentioned in a press conference or weekend radio show), but bringing it up during the State of the Union address is completely absurd. The SoU address is suppose to be a State of the Union...get it? It's not supposed to be a chance to bash and lecture the other political party or anyone else the President might currently disagree with. It's supposed to be a message to the people regarding the actions that the President has taken over the past year and the impact those actions have had on the country. But since Obama hasn't done anything that has contributed positively to the country, he didn't really have anything to talk about. So he reverted to campaign mode which is the only thing he's good at. I'll give him credit for one thing though...he's one of the best politicians this country has ever had. Not a leader in any sense of the word, but a great politician.

[Glenn]

POTUS is a politician and is entitled to criticize actions of the SCOTUS. If it's a cheap shot, he and his party will pay for it at the polls. Justices are not supposed to be politicians. Alito showed his true colors: he's not a judge, he's a partisan hack. Go back to practicing law or run for office - you are a disgrace to your office.

[Terry McGraw]

President Obama, said he would call people out and that's exactlly what he done. I didn't see anything wrong with it. Even the Judge's reaction was alright. We don't want our elections won by special interest, just because they have more money to buy it with.
I liked President Obama, calling out the Repubs' and Democrats to. It's about time something gets done to help the American people.

[Brian]

Why is it that everyone is ripping on the judge and not on the president for his inaccurate statement? I feel the judge was being and judge and calling it like he seen it.i for one will never ever support the Democratic party again because of the disrespect they all showed.

[condo]

pretty disrepctful of sam at state of the union. guess he is smarter than all of us since he must beleive major corp spending for candidates will not outweigh my $ 5 dollar contribution. guess he has been reading the minds of the developers of the constituion.

[Norma Harrison]

There is no such thing as ANY non-political behavior by you, me, or anyone, here. All what we do relates to the structures within which we do what we do. Those all emanate from political contrivances - the framework for what can be done.
What WILL be done can be a different question. But it takes inORDinate effort to act outside the required conformity. Fortunately the requirements here in the U.S. are still advanced by comparison to so many other places - which, by the way, are changing, readying to leave the U.S. in a darkening age. [email protected]

[dr. anthony]

The issue is separation of powers. The President's preface: "With all due respect to separation of powers," reminded me of that oft repeated scene in THE SOPRANOS when anyone who was about to lambast TONY prefaced with: "With all due respect TONY." The President's preface functioned as an admission on his part that he was either going to cross or come right up to that line that separates the Executive from the Judicial branch of government. But the President did not limit himself to encroaching upon the Judiciary's purview, he threatened that unless the Legislative branch gave him what he wanted, he would issue an Executive order, essentially circumventing the purview of the Legislative branch. Keep in mind that the bully pulpit is never more potent than during the State of the Union address. I think Justice Alito, and others, felt the encroachment upon their purview and reacted with disdain over the implicit arrogance and disrespect that accompanies such an act by a sitting President. "With all due respect Mr. President....you were out of line."

[Renske Verheul]

Glenn Greenwald in Salon posted about this, and one comment seemed particularly interesting:
http://letters.salon.com/opinion/greenwald/2010/01/28/alito/permalink/415eceb0ff2f6d95bf902ea051954fa4.html

Some people comment on the free speech ruling by mentioning that newspapers are also run by corporations, so should according to (now old) law also shut up.
Is that valid criticism, or is there an exception in regard to newspapers?

[Darren McKinney]

"Tony" is certainly correct to say that everyone's decisions are and ought to be subject to fair criticism, even those of Supreme Court justices.

But for a president to undertake direct criticism of the high court during a SOTU address, especially while otherwise asserting a desire to dial back the partisanship in Washington, he opens himself up to criticism, fair or not, of hypocrisy and coarsening the joint-session tradition with a Chicago-style cheap shot.

Leaving aside the fact that his relevant remarks suggest President Obama has yet to read the Citizens United decision, baiting the SCOTUS's young conservatives on national television certainly won't make it easier for his liberal administration to win future decisions. Nor will his stunt appear very presidential in the eyes of critical independent voters, many of whom have reportedly begun to rethink their earlier support of a president they believed would be "post-partisan."

[Ed. Ayans]

It should note that criticism, when constructively intended and so delivered, it is a healthy and imbedded into our society's DNA. Moreover, I strongly believe that it is a critical component of a our fundamental rights under the First amendment. However, as the old saying goes:

The freedoms we enjoy in America under our constitution's first amendment rights are also restrained by the boundaries with the same rights that are enjoyed by others.

Just as crying out "fire" in a crowded theater" is not a proper exercise of the first amendment, so is Justice Alito's dissent at the time and in the place he dissented.

[Ed. Ayans]

I am puzzled and disappointed by the premise that-- although the media has widely published Justice Alito's disagreement with a content in the President's speech last night--there has been a complete avoidance of calling his public disagreement for what it really is:

"Not only a disrespect to the President's SOTU speech but more clearly. a disrespect to the other members of the Supreme Court by bringing unwarranted criticism for his reaction to the institution's long standing commitment to remain out of the politics of the executive branch."

[Tony]

If anybody upset what say president Obama I give my comments;
Do you know what is different between judge and God?
Judge always think he is God but God never think he is judge.
Everybody has a right to criticize any decision even judge(s).
President also.