When Barack Obama turned his State of the Union address into an attack on the Supreme Court's ruling that ended the ban against corporate spending for political campaigns, the justices had to sit there motionless while encircled by Democratic lawmakers who cheered the president's scolding.
Judicial scholars could not recall a president "taking a swipe" at the justices, as one of them put it, in such a venue, at least not since FDR did it in his 1937 address before he tried to pack the court with more liberals to rule in favor of his unconstitutional New Deal programs.
Sadly, the news media focused on Justice Samuel Alito Jr., seen shaking his head and mouthing the words "not true, not true" to something the president said was true.
The nightly news shows at the time questioned Alito's response, not the president's questionable -- and many thought rude -- political attack on the high court, treating the justices before him as if they were schoolchildren and he was their headmaster. The word intimidation comes to mind, with two major branches of government seemingly ganging up on the third.
Now, Chief Justice John Roberts Jr. has waded into this controversy and said something that needed to be said -- that this episode was at the very least a troubling breach of decorum and protocol.
But he seemed to suggest even more than that. This was a deliberate, public, dressing down of the justices, who handed down the 5-4 decision, in the midst of a forum that Obama turned into a partisan, campaign-style address. And the judges, who were guests, were turned into targets to score political points
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Round two of this issue came up when Roberts spoke at the University of Alabama law school Tuesday and took questions from the students. He politely and correctly declined to answer when asked about criticism of the court's decision. But when another student asked him whether the State of the Union address before a joint session of Congress was the "proper venue" for the president to "chide" the high court, Roberts was only too happy to respond.
He began by essentially embracing the freedom-of-speech clause in the First Amendment that was the basis of the court's ruling in this case, saying that "anybody can criticize the Supreme Court without any qualm." And in a deep bow to the two other branches of government, he even added that "some people, I think, have an obligation to criticize what we do, given their office, if they think we've done something wrong.
"On the other hand, there is the issue of the setting, the circumstances and the decorum. The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court -- according to the requirements of protocol -- has to sit there expressionless, I think is very troubling."
White House press secretary Robert Gibbs, repeating almost word for word what Obama said in his address, shot back: "What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections -- drowning out the voices of average Americans." But Obama went further in his remarks on the case to milk every political drop he could from the issue. The ruling, he said, "will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections" (A point that Gibbs noticeably chose not to repeat.)
That's when Alito shook his head and mouthed "not true," because it isn't. In fact, the court stated in the case, Citizens United v. Federal Election Commission, it did not deal with election spending by foreign corporations because the law they overturned did not differentiate between United States and foreign companies.
Indeed, the Washington Post's Supreme Court reporter Robert Barnes further pointed out that "there are restrictions on foreign participation in U.S. elections that were not part of this case," facts that the president's speechwriters should have known, or, maybe, just chose to leave out.
But the president was treading on thin ice when he attacked the court's freedom-of-speech decision by saying, "I don't think American elections should be bankrolled by America's most powerful interests ..." What part of the First Amendment's "Congress shall make no law ... abridging the freedom of speech" doesn't he understand?
Obama and his well-connected corporate bundlers, who raised more money for him than anyone else in U.S. history, know a thing or two about opening the floodgates of campaign money. They raked in $750 million for his 2008 presidential campaign. Much of it came from those same special interests he was talking about.
Like wealthy trial lawyers who win huge sums of money from medical-liability lawsuits. The checks they collected for his campaign were worth every million they gave him. His healthcare-reform plan dutifully left out any mention of tort reform to rein in jury awards that have sent medical costs through the roof.
Meantime, we may not be seeing any justices at Obama's future State of the Union addresses -- or at least not the ones whose votes displease him.
"To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there," Roberts said.
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