Democrats are doing their best to give Justice Alito the Joe Wilson treatment for his response to President Obama's criticism of the Supreme Court's decision in Citizens United v. FEC. As Politico reports, "[Russ] Feingold, who sits on the Judiciary Committee, said it was 'inappropriate' and 'not very judicial' of Alito to protest — and he criticized the justice for failing to 'maintain his judicial demeanor.' Sen. Ted Kaufman (D-Del.), another committee member, said in an interview that Alito was 'totally classless.'" Republicans have been quick to defend Alito:
Republicans said Obama started the fight — and that he shouldn't have used the State of the Union as an opportunity to go on the offensive against the justices sitting before him.
Asked about the imbroglio, Sen. Jeff Sessions (R-Ala.), ranking member of the Judiciary Committee, said sternly: "It was not proper for the president of the United States to misrepresent the Supreme Court decision before the American people. He's supposedly a constitutional law professor — he ought to know better."
Even though Sen. Lindsey Graham (R-S.C.) disagreed with the court's decision, he called Obama's criticism of the justices "awkward and inappropriate."
It was wrong and unfair for Obama to reprimand the Supreme Court justices in that forum. In what has been characteristic of Obama's attitude towards dissent of his policies, Obama's smug rebuke of the Supreme Court was analogous to a boxing match between a prizefighter and a man with two hands tied behind his back who never asked for the fight in the first place. Obama was not showing, as he put it, "due deference to separation of powers" when he called out the five member majority on national television. If he had been, he wouldn't have dragged the Supreme Court into a speech that is, by and large, political. The Supreme Court justices do not applaud, stand, or otherwise respond to most of the President's State of the Union address for that very reason. To do so would signify their public disagreement or approval of Article I and Article II policymaking, something that justices should not do publically for the sake of respect for the separation of powers. Likewise, in such a forum as the State of the Union, the President should respect the Supreme Court's decision-making authority under Article III of the Constitution. You can disagree with that reasoning, but as BLT (the blog of Legal Times) notes, Obama's criticism of the Supreme Court is "almost unprecedented." Past Presidents have avoided this forum to criticize the court, likely for the very reason of showing "due deference to separation of powers."
As for Alito's response, that Obama's accusations were "not true?" Alito was right. As even the New York Times admits:
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.
Ed Whelan at National Review, goes further and calls Obama's criticism "demagogic mendacity." (Click here for more from National Review on how Obama misrepresented the Citizens United decision. Click here for a good roundup of commentary on the controversy from SCOTUSblog.)
In sum, this is sophomoric, but Obama started it. He shouldn't have thumbed his nose at the justices in the first place; and if he did, he shouldn't have misrepresented the decision. Alito merely corrected the President, even if he only intended it as an acknowledgment to himself.