If you hadn't heard, President Obama had some pretty harsh words for the Supreme Court's recent decision (Citizens United v. Federal Election Commission, SCOTUSWiki page here, opinion here) during last night's State of the Union address. (A piece of trivia: this was actually Obama's first State of the Union address. Most recent Presidents, including Obama, have had an address to a joint session of Congress near the beginning of their term. They do not, however, have a formal State of the Union speech until they've been in office for a year.)
During the speech, Obama said:
Last week, the Supreme Court reversed a century of law to open the floodgates for special interests—including foreign corporations—to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that's why I'm urging Democrats and Republicans to pass a bill that helps to right this wrong.This comment caused quite the stir among people who watch the Court. It even caused Justice Alito, present at the speech to shake his head and appear to mouth "not true." Justice Alito was not the only one present. In fact, six of the nine justices attended the State of the Union. They, of course, remained seated, "stone-faced" as the rest of the chamber erupted in applause. There are many moments like this in any speech in front of Congress. When the President criticized Republican obstructionism, he met with glares from that side of the room. When he called for the repeal of Don't Ask Don't Tell he got a cold response from the Joint Chiefs of Staff.
Some commentators think that this criticism of the Supreme Court is particularly noteworthy, however. Some even call it offensive. Randy Barnett (a Constitutional law professor at Georgetown) went so far as to use an op-ed in the Wall Street Journal to call for a Presidential apology to the Court. In Barnett's view: "the Supreme Court may be criticized. I do it regularly in class, op-eds, blog posts, and in the pages of law reviews. So too should the president when he thinks the Court is wrong."
However, he thinks there's a time and a place for everything. "In short, the head of the executive branch ambushed six members of the judiciary, and called upon the legislative branch to deride them publicly." It's undeniable that the President used his bully pulpit to call the Court out. But I take issue with Professor Barnett's apparent belief that it was unusually inappropriate or deserving of an apology. The president called out many people who were present, including the Joint Chiefs of Staff and members of the Congressional opposition.
I think Barnett is also being disingenuous by claiming that President Obama "ambushed six members of the judiciary." It is not news that our President thinks the Supreme Court messed up with Citizens United, and if any of them were surprised that he mentioned it during the speech, I'm not sure they're intelligent enough to serve on our nation's highest tribunal. It's also worth noting that he only really criticized three of the six present: Chief Justice Roberts, Justice Alito and Justice Kennedy. The other two members of the majority (Justices Thomas and Scalia) were absent, and the other three justices in attendance (Justices Ginsburg, Sotomayor and Breyer) actually agree with the President.
Professor Barnett then attacks the substance of Obama's comment:
The president made a nakedly result-oriented criticism: Because interest groups and foreigners (gasp!) will allegedly get to influence our elections, the Supreme Court made a legal mistake.In fairness, Obama's comment was results oriented, as appropriate. He is a member of the political branch, so his concern is results. However, he didn't actually say that the Court was wrong on the law. He said that there was a danger of bad results, and that made the decision a dangerous one. But he didn't actually say that the decision was incorrect.
I'll close with my own criticism of Obama. Barnett and others have been correct when they pointed out that Obama's comment actually was incorrect on the content of the decision in Citizens United. The majority specifically declined to decide whether foreign-owned corporations have First Amendment rights (Obama said the decision would affect corporations, "including foreign corporations"). He also mischaracterized it by claiming that it allowed corporations to "to spend without limit in our elections." It allows unlimited independent expenditures but corporations still cannot donate much money directly to candidates. (There is a lower court case challenging such limits on direct contributions, though.)
Anyways, I would have expected better from a professor at the University of Chicago and a graduate of Harvard Law. Shame on you, Mr. President.