State of the Union: The Slam, the Scowl and the Separation of Powers

WASHINGTON, Jan. 28, 2010— -- It was an impromptu moment of political theater with a constitutional lesson at the heart of it.

President Barack Obama took the extraordinary step of bashing a decision of the Supreme Court in his State of the Union address last night -- while six of the justices sat there stonily.

Well -- five sat there stonily. Justice Samuel Alito Jr. couldn't contain himself. He scowled, shook his head vigorously, and mouthed what seemed to be the words, "Not true."

It wasn't exactly "YOU LIE!" -- Rep. Joe Wilson's (in-)famous outburst at the president last year. But it was exceptional, and for those of us who are fascinated by our constitutional traditions and norms, it was a riveting moment and, perhaps, a sign of these times.

Justice Alito is getting a lot of criticism for his display of pique. And he probably ought to have sat there quietly, as his colleagues did. And as my mom always told me to do when at a formal occasion.

But President Obama shares some of the blame for this contretemps -- and he knows it.

It is an extraordinary thing for a president in a State of the Union address to trash a decision of the Supreme Court.

Tony Mauro, over at The Blog of Legal Times, has done some legwork and finds that presidents have mentioned the Supreme Court by name only nine times in the past century or so, most of those times innocuously.

Harding, Franklin D. Roosevelt and Reagan were the only three who really took aim at the Court specifically -- Harding to advocate the repeal of court decisions outlawing child labor in America (really); FDR to pressure the court to get out of the way of the New Deal; and Reagan to urge the passage of a constitutional amendment allowing school prayer.