Justice Alito's Conduct and the Court's Credibility

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.

The Justices are seated at the very front of
the chamber, and it was 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.

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.

What's most
disturbing here is the increasing trend of right-wing Justices
inserting themselves ever more aggressively into overtly political
disputes in a way that seriously undermines their claims of apolitical
objectivity. Antonin Scalia goes hunting with Dick Cheney, dubiously refuses to recuse himself from a lawsuit challenging the legality of Cheney's actions, and then rules in Cheney's favor. Scalia has an increasing tendency to make highly politicized comments about purely political conflicts, most recently defending torture in an interview with 60 Minutes. As
part of Clarence Thomas' promotional efforts to sell his book, he spent
substantial time building his conservative icon status with the furthest right-wing media elements -- even parading himself around on Rush Limbaugh's radio program -- and turned himself into the food fight of the week between Democrats and Republicans.

It
was clear from Sam Alito's confirmation hearing and his record of
appellate opinions that he is a dogmatic, state-revering, right-wing
judge. But last night, he unmasked himself as a politicized and
intemperate Republican as well. Much of the public will view his
future "judicial" and "legal" conclusions -- and those of his fellow
Court members -- with an even greater degree of cynicism. And
justifiably so. Whatever impulses led him to behave that way last
night, they have nothing to do with sober judicial reasoning or
apolitical restraint.

* * * * *

Three related items: (1) I spent substantial time over the last week here and in other venues partially defending the Citizens United ruling; yesterday, Harvard Law Professor Larry Lessig responded to my arguments.
I disagree with several of his points, but as I said, this is a hard
case and his objections are reasonable and worth reading; (2)Politico's Josh Gerstein notes
language in Obama's speech that suggests an embrace of the
GOP/Scott-Brown position on detainee rights; I'm not sure that meaning
was intended, but it certainly merits a response from the White House;
and (3) reactions to Obama's speech were painfully
predictable: Obama lovers swooned, Obama haters spat contempt, and
the "TV pundits" did exactly what Obama said they do ("TV pundits
reduce serious debates to silly arguments, big issues into sound
bites"); it remains to be seen how the less convicted among us will
respond.