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

Obama, Alito and the Political Theater of a Constitutional Lesson

January 28, 2010, 1:13 PM

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.

So presidents are careful to respect the decisions of the court. Sure, Andrew Jackson was supposed to have brushed off a Supreme Court decision that would have stopped the government from forcibly removing Cherokee, Creek and other American Indian peoples from their homelands in the Southeast out to Oklahoma with the frank declaration, "John Marshall has his opinion; now let him enforce it." (Jackson may not have said this of the Chief Justice, but he acted in the spirit of the statement, ignoring the Court and putting the tribes on the genocidal Trail of Tears.)

And FDR got so frustrated with the Court's rulings on the New Deal he tried to expand its membership and pack it with his legal toadies. But both moves are seen today as low points in the history of the presidency. Even Richard Nixon bowed to the will of the court, releasing the Watergate tapes he knew would end his presidency.

There's a good reason for this tradition of deference. The Supreme Court has no direct authority to enforce its rulings. Think about it: There is no Supreme Court police force, or tax collection department, or other agency to see that its decisions are adhered to throughout the land. The court is, in that sense, powerless. Its only power, its only duty, in Marshall's words, is "to say what the law is." It depends on the political branches to give effect to its rulings and maintain the rule of law in our country. It depends on that tradition of respect.

Obama departed from this tradition. And he ad-libbed a phrase in his speech that shows he must have known it. He added the prefatory clause, "With all due deference to the separation of powers...." He must have known what he was doing. And he sought at the last moment to soften the blow.

Now, you may agree with the president's opinion that the court's ruling in the big campaign-finance case last week was bad for our democracy. You may disagree with him. But the president's choice to go after the court in his speech is, in fact, a departure from one of those unspoken norms of political behavior that inform our constitutional system and lie close to the heart of who we are as a constitutional people. And Justice Alito's loss of composure is also a breach of those old protocols, those old ways.

What we saw, in a sense, was a bit of town-hall rowdiness, a bit of the blogosphere's "disinhibition effect" seeping into the State of the Union address. Not a lot, but a little. And even that little bit -- even this little moment about which I am making far too big a deal, I know -- even this is reflective of the very polarized, very innovative (in a bad way) political culture the president said he was seeking to overcome.

So when he saw the Democrats in congress rise around the justices and lustily cheer his traducing of their ruling as they sat there uncomfortably, a bit like some outcasts in the midst of a righteous mob, I wonder if Barack Obama, the old constitutional law professor, was happy with his rhetorical handiwork.

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