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Citizens United Case: Potus’s SOTU Scotus Smackdown: A Roundup

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  • Citizens United Case: Potus’s SOTU Scotus Smackdown: A Roundup

    We knew it was coming; CBS’s Jan Crawford told us so Wednesday night, just a few moments after 9 p.m. So the six Supreme Court justices in attendance ??" Chief Justice Roberts and Justices Alito, Breyer, Ginsburg, and Sotomayor ??" must have known it was coming too.

    Still, when it came ??" when President Obama tonguelashed the court over its recent Citizens United case ??" we almost dropped our burrito in our lap. Stunning. Justice Alito seemed to feel that way too; he clearly mouthed something to the effect of “not true,” after Obama predicted Citizens United would “open the floodgates for special interests ??" including foreign corporations ??" to spend without limit in our elections.” (Click here to watch the video of the gripping moment on Politico; here and here for LB background on the Citizens United decision.)

    What to make of this? Was Obama’s excoriation an inexcusable breach of decorum? Was it justified? And given that the justices have to sit impassively through the entire speech, with everyone else jumping around like a bunch of monkeys, should Justice Alito have had the discipline to keep his lips shut?

    Here’s how others feel about the incident:

    Bradley Smith, writing at the National Review:
    Tonight the president engaged in demogoguery of the worst kind . . . The president’s statement is false. . . . This is either blithering ignorance of the law, or demogoguery of the worst kind.

    Linda Greenhouse, writing on the NYT’s Opinionator Blog:
    Indeed, Mr. Obama’s description of the holding of the case was imprecise. He said the court had “reversed a century of law.”

    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.

    David Lat, at Above the Law:
    I agree that it was a bit ??" well, tacky ??" for Obama to call out the Court like that, and to make them sit there like chastened schoolchildren while everyone around them stood and applauded. But in the separation of powers, each branch gets to use its powers as it sees fit, to push back against and check the other branches. Tonight was a good illustration of that.

    As the executive, Obama has the power of the bully pulpit. He can express disagreement with the Court’s rulings, even to the justices’ faces; that’s his prerogative. And that’s what he did in this evening’s speech.

    Randy Barnett, at Politico:
    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 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.

    LBers, any thoughts?

    It was a breach of decorum.
    It was justified.
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