Thursday, January 28, 2010

At Least They Had Good Seats For The Speech

It was a dramatic moment, wasn't it? With a handful of the justices seated immediately before him, the President criticized the recent Citizens United decision. Supposedly, though I didn't see it, Justice Alito shook his head and said "That's not right." I haven't read any of the commentary on this yet. But let me make the following assumption: right-leaning legal thinkers are comparing this to court-packing and all manner of other evils. Left-leaning legal thinkers are saying that there's nothing wrong with shining a light on an institution that is almost completely unaccountable for the work it does.

My immediate reaction was guilty pleasure. I liked the fact that Justice Roberts, Justice Kennedy, and Justice Alito were called out in the most public setting possible by someone who commands respect. And for the second time in a couple of days, no less.

Now I haven't read all or even most of Citizens United. I suspect that it's based on a justifiable reading of the First Amendment. I'm quite certain it puts yet another nail in the coffin of conservative hand-wringing about judicial activism. To the extent there's even room for another nail anyway.

But what if it had been another president up there on the dais? The last one, for example. And what if instead of criticizing Citizens United, he'd been criticizing the decision in Lawrence v. Texas? I think I would have been less happy about that. But I think I would have been wrong.

It is now commonly accepted that presidents are going to appoint justices who share similar political philosophies. How does this President's criticism of a controversial decision differ from his predecessor's appointment of two extremely conservative justices in a clear effort to push the Court further to the right? It really doesn't. Both are public acts. Both have in mind political goals. So why are conservatives (probably)* so upset this morning? Because they lost the White House. They might get it back in a few years. They might not. But that's what's really going on here.

*Again, I haven't read a word about this yet.


Anonymous said...

I don't think conservatives are any more upset than liberals over Justice Alito's response -- from the Washington Post:

"Rude," Sen. Orrin G. Hatch (R-Utah) said of the president. "Inappropriate" was the verdict on Alito from Sen. Russell Feingold (D-Wis.).

Guess it depends on what blogs you read. One thing is certain -- there won't be as many members of the Court attending next year's State of the Union address.

Terry Klein said...

You should read the first graph of the post again. I thought I captured the whole "eye of the beholder" issue here. I'll stipulate that there's some preposterous rhetoric being spewed on both sides.

Not sure you're right about Justice Alito taking his ball and going home next year. That would feel like an admission to me. Time will tell.