Glenn Greenwald on Justice Alito
Beyond the issue of whether Justice Alito was substantively right or wrong when he mouthed at last night’s SOTU that Pres. Obama’s characterization of the Citizens United decision was “not true,” there is another issue that very few (if any) bloggers or pundits are discussing — and that is whether it was improper for Justice Alito to visibly react to what Obama said.
Glenn Greenwald is one of those few, and the only one so far that I have seen. His very interesting take on last night’s incident is that it was a far more serious infraction than was Joe Wilson’s outburst.
As I wrote at the time, I thought the condemnations of Rep. Joe Wilson’s heckling of Barack Obama during his September health care speech were histrionic and excessive. Wilson and Obama are both political actors, it occurred in the middle of a political speech about a highly political dispute, and while the outburst was indecorous and impolite, Obama is not entitled to be treated as royalty. That was all much ado about nothing. By contrast, the behavior of Justice Alito at last night’s State of the Union address — visibly shaking his head and mouthing the words “not true” when Obama warned of the dangers of the Court’s Citizens United ruling — was a serious and substantive breach of protocol that reflects very poorly on Alito and only further undermines the credibility of the Court. It has nothing to do with etiquette and everything to do with the Court’s ability to adhere to its intended function.
There’s a reason that Supreme Court Justices — along with the Joint Chiefs of Staff — never applaud or otherwise express any reaction at a State of the Union address. It’s vital — both as a matter of perception and reality — that those institutions remain apolitical, separate and detached from partisan wars. The Court’s pronouncements on (and resolutions of) the most inflammatory and passionate political disputes retain legitimacy only if they possess a credible claim to being objectively grounded in law and the Constitution, not political considerations. The Court’s credibility in this regard has — justifiably — declined substantially over the past decade, beginning with Bush v. Gore (where 5 conservative Justices issued a ruling ensuring the election of a Republican President), followed by countless 5-4 decisions in which conservative Justices rule in a way that promotes GOP political beliefs, while the more “liberal” Justices do to the reverse (Citizens United is but the latest example). Beyond that, the endless, deceitful sloganeering by right-wing lawyers about “judicial restraint” and “activism” – all while the judges they most revere cavalierly violate those “principles” over and over — exacerbates that problem further (the unnecessarily broad scope of Citizens United is the latest example of that, too, and John “balls and strikes” Roberts may be the greatest hypocrite ever to sit on the Supreme Court). All of that is destroying the ability of the judicial branch to be perceived — and to act — as one of the few truly apolitical and objective institutions.
Justice Alito’s flamboyantly insinuating himself into a pure political event, in a highly politicized manner, will only hasten that decline. On a night when both tradition and the Court’s role dictate that he sit silent and inexpressive, he instead turned himself into a partisan sideshow — a conservative Republican judge departing from protocol to openly criticize a Democratic President — with Republicans predictably defending him and Democrats doing the opposite. Alito is now a political (rather than judicial) hero to Republicans and a political enemy of Democrats, which is exactly the role a Supreme Court Justice should not occupy.
Something I did not know last night — and, frankly, did not even give a moment’s thought to — was just exactly where the SCOTUS justices were seated. Well, they were seated “at the very front of the chamber,” making it “predictable in the extreme that the cameras would focus on them as Obama condemned their ruling.”
Seriously: what kind of an adult is incapable of restraining himself from visible gestures and verbal outbursts in the middle of someone’s speech, no matter how strongly one disagrees — let alone a robe-wearing Supreme Court Justice sitting in the U.S. Congress in the middle of a President’s State of the Union address? Recall all of the lip-pursed worrying from The New Republic‘s Jeffrey Rosen and his secret, nameless friends over the so-called ”judicial temperament” of Sonia Sotomayor. Alito’s conduct is the precise antithesis of what “judicial temperament” is supposed to produce.
Furthermore, the points that form the bulk of the right-wing response to this story — that Obama got his facts wrong, and that he was the rude one for criticizing the decision in the presence of the Supreme Court justices — don’t wash, in Glenn’s view:
Right-wing criticisms — that it was Obama who acted inappropriately by using his SOTU address to condemn the Court’s decision — are just inane. Many of the Court’s rulings engender political passions and have substantial political consequences — few more so than a ruling that invalidated long-standing campaign finance laws. Obama is an elected politician in a political branch and has every right to express his views on such a significant court ruling. While the factual claims Obama made about the ruling are subject to reasonable dispute, they’re well within the realm of acceptable political rhetoric and are far from being “false” (e.g., though the ruling did not strike down the exact provision banning foreign corporations from electioneering speech, its rationale could plausibly lead to that; moreover, it’s certainly fair to argue, as Obama did, that the Court majority tossed aside a century of judicial precedent). Presidents have a long history of condemning Court rulings with which they disagree — Republican politicians, including Presidents, have certainly never shied away from condemning Roe v. Wade in the harshest of terms — and Obama’s comments last night were entirely consistent with that practice. While Presidents do not commonly criticize the Court in the SOTU address, it is far from unprecedented either. And, as usual, the disingenuousness levels are off the charts: imagine the reaction if Ruth Bader Ginsburg had done this at George Bush’s State of the Union address.
There’s plenty more to Glenn’s piece; be sure to read the whole thing.
64 Responses to “Glenn Greenwald on Justice Alito”
Obama has a right to express his opinion, but to express his opinion the way he did (and in that setting) undermines any perception or reality of a Court that is “separate and detached from partisan wars.”
Its more of a matter of tone. s the article notes Reagan made an “indirect jab”, thats a far cry from an in your face attack like Obama made. Obama certainly did not appear very Presidential, he looked more like Lee Atwater than Ronald Reagan with his remarks.
BTW for good entertainment Althouse rips Greenwald's article her, she is one her game:
http://althouse.blogspot.com/2010/01/glenn-gree…
One additional note:
Funny how Obama criticized the decision he did but made no mention of the Supreme Courts ruling against some of his Cheney-like positions regarding detainees and the War on Terror. Gotta love such selective criticism. Somehow I don't think populism will do much to sway the court away from the Constitution, at least until he gets a change to appoint another “empathy judge” to replace a constructionist judge.
Wasn't directed at me, but I do read him alot, and he is smart enough not to go there where he doesn't want to get into conflict with the ACLU lawyers. Probably because he knows they are correct from a legal standpoint. Glenn is always reluctant to enter into a debate where he knows the other side is correct.
So do you think the government has the right to regulate who or what business can publish which and how many books? What stories and in what number a news organization must report? etc.
I don't. Neither does the First Amendment:
I mean you wouldn't make the argument that the press was allowed to remain free despite the government not allowing companies to spend money on news broadcasting or publishers not allowed to print newspapers would you?
Leonidas,
I repeat yet again. The majority's opinion is one plausible interpretation of the First Amendment. Having said that, this view of the constitution continues to conflate money with speech, and that is the way the decision is arrived at.
To your other point, this is not a free press case. If you want freedom of the press, buy a publishing company or a broadcast company.
The government commonly, everyday, regulates how corporations can spend money. Without a special license, corps can't spend their money to buy plutonium or anthrax. Corps are required to spend their money on environmental cleanup. Corps can't spend their money to build an industrial plant in a neighborhood zoned residential; they can't spend their money building substandard construction but must meet code. They are required to spend their money paying taxes, obtaining licenses, cannot spend money to flush raw effluent into rivers and streams. They cannot spend their money producing false advertising (do you see that as also a constraint on free speech?). There is a dramatic difference between restrictions on spending money,which is not constitutionally protected, and freedom of speech which is.
Look, Leo , on this site, I have opposed hate crime legislation on First Amendment grounds. Freedom of speech and I are not strangers. But, there is a difference between freedom of speech and restrictions on spending money. Conflating money with speech is one (activist) interpretation of the Constitution. In this particular case that activist interpretation prevailed. I accept that, and we will now see what the fallout is.
I think that happened when the 2k election vote went down party lines on the court. Not that it surprised me, we all always knew they were partisan but that train left the station long ago.
Alito said, 'Not true', meaning it was a lie. That is not the same thing as barely true, meaning more true than not. Alito was wrong.
Obama has a right to express his opinion, but to express his opinion the way he did (and in that setting) undermines any perception or reality of a Court that is “separate and detached from partisan wars.”
That train did leave the station. Cornyn and Delay, for instance, have even implied violence will be the result of court rulings they didn't like. Supreme court justices, especially Ginsberg, have repeatedly gotten death threats (from unhinged individuals with a conservative bent). Obama wasn't implying anything that wasn't already known. The court hasn't been detached from the partisian wars for many years. Obama, in general, was unusually blunt in the SOTU.
That is one of the favorite memes for the Left to lob (even at itself at times), which is beyond ironic, because the charge itself is a verifiable lie.
Someone can say something that is not true without it being a lie.
A lie, by definition, is the purposeful making of a statement that that is known to be false when made.
A false statement however can also be caused by a misunderstanding of the facts, an incomplete knowledge of the facts, or an honest belief in the case of interpretative statements that your analysis and conclusion is the correct one, even if others disagree. None of those are lies, even though what is said may indeed be false.
tibits – I agree with much of what you write, even though I am of the opinion that Citizens United was correctly decided. You do not, but at least have the intellectual honesty to admit that the Court's position is a defensible one legalistically.
You do keep coming back to the 'money = speech' aspect, and I get the opinion from your writings on this subject that it is one place you believe this ruling is 'activist'.
I believe the opposite to be true.
The concept of money = speech, in the arena of political speech and electioneering, was actually first cited by the Court in its 1975 Buckley v. Valeo ruling. Now, disagreeing with the concept itself is certainly fair game, but it is not an invention of this court.
Oh yes, you are absolutely correct. Money=speech is not a creation of this court. As I said somewhere above this conflation of money/speech has been part of Judicial interpretation for decades. Among it principal early advocates were liberal activist judges, including hangers-on from the Warren Court in the Buckley case. My position is that it was then, and remains today, an activist interpretation of the First Amendment. Most particularly, I take issue with with those who insist CU is strict construction or judicial restraint. As I point out in my reply to Kathy above, the procedural means used to get this case to the breadth of this opinion, speaks volumes about the Court's activism.
Regarless of how you feel about President Obama or Justice Alito, the branches of government are separate. If a Justice feels that the President is mischaracterizing a Supreme Court decision, he can mouth whatever he wants. It may be a breach in protocol, but that doesn't bother me. I would say the same thing if a liberal member of the Supreme Court were to do the same thing at a conservative President's SOTU address.