Supreme Court Historian: After President’s “Insult,” Won’t Be Surprised If Supreme Court Doesn’t Attend Next Year’s State of the Union Address

Jan 28, 2010 2:00pm

A noted Supreme Court historian who “enthusiastically” voted for President Obama in November 2008 today called President Obama’s criticism of the Supreme Court in his State of the Union address last night “really unusual” and said he wouldn’t be surprised if no Supreme Court Justices attend the speech next year.

“It was really unusual in my mind to see the president going after the Supreme Court in such a forum,” said author and Law Professor Lucas Powe, the Anne Green Regents Chair in Law, and a Professor of Government at the University of Texas-Austin School of Law. “I’m willing to bet a lot of money there will be no Supreme Court justice at the next State of the Union speech.”

Added Professor Powe, who clerked for Supreme Court Justice William Douglas, “you don’t go to be insulted. I can’t see the Justices wanting to be there and be insulted by the president.” His opinion has nothing to do with animus towards the President, for whom Powe said he voted enthusiastically.

President Obama took the apparently unprecedented step of assailing a Supreme Court decision in his speech last night, saying, “with all due deference to separation of powers, 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'd urge Democrats and Republicans to pass a bill that corrects some of these problems."

The president was assailing the decision in the Citizens United case, allowing corporations to spend money to influence elections. The remarks were called “kind of rude” by the former chairman of the Senate Judiciary Committee, Sen. Orrin Hatch, R-Utah, who told the Salt Lake Tribune, "It's one thing to say that he differed with the court but another thing to demagogue the issue while the court is sitting there out of respect for his position." 

It has also raised eyebrows among legal commentators. At Legal Times, Tony Mauro headlined one blog post “Supreme Court Turns Out for Tongue-Lashing at State of the Union.” 

The way the president deviated from the prepared text indicated he may have tried to soften his remarks as he made them. He added “with all due deference to separation of powers” and replaced his desire that Democrats and Republicans “pass a bill that helps to right this wrong” with one for lawmakers to “pass a bill that helps to correct some of these problems."

Listening to the speech Justice Samuel Alito could be seen mouthing the words “that’s not true.”

“I think Alito’s correct,” Powe told ABC News. “They weren’t overthrowing 100 years’ worth of history. They were overthrowing 20 years’ worth.”

There is some history here. President Obama is a former constitutional law lecturer who, aides say, was genuinely outraged by the decision.

(He’s also the first US President to have ever voted to filibuster a Supreme Court nominee. That nominee was Justice Alito.)

Powe said the polar opposite of the tension last night was when President Lyndon Johnson gave his “We shall overcome” speech in March 1965 and “Supreme Court Justices were standing and clapping with everyone else.”

Asked today what President Obama’s reaction was to Justice Alito's reaction, White House deputy press secretary Bill Burton said, “one of the great things about our democracy is that powerful members of the government at high levels can disagree in public and in private.  This is one of those cases.”

Vice President Joe Biden told ABC News’ Good Morning America, “I think it's an outrageous decision, Not outrageous in the fact that these guys are bad guys, outrageous in terms of the way in which to read the Constitution and what constitutes free speech…What the president was saying was 'look this was a big decision, a significant departure, a 5-4 decision, I think it was dead wrong and we have to correct it, and so Congress and the Senate, look at this. Look at it, and help me change it.’”

The president who historically had the most tense relationship with the highest court in the land was arguably Franklin Roosevelt, who – after the Supreme Court struck down several New Deal measures – introduced the Judiciary Reorganization Bill of 1937, which would have given him the power to appoint up to six new Supreme Court Justices – one for each sitting Justice over the age of 70 ½.

When FDR mentioned the court that in the 1937 State of the Union address, however, he did so vaguely, saying, “the Judicial branch also is asked by the people to do its part in making democracy successful. We do not ask the Courts to call non-existent powers into being, but we have a right to expect that conceded powers or those legitimately implied shall be made effective instruments for the common good. The process of our democracy must not be imperiled by the denial of essential powers of free government."

After his second inaugural, FDR recalled to an aide, when “the Chief Justice read me the oath and came to the words ‘support the Constitution of the United States’ I felt like saying: ‘Yes, but it’s the Constitution as I understand it, flexible enough to meet any new problem of democracy—not the kind of Constitution your Court has raised up as a barrier to progress and democracy.’”


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