Once again, where one stands on the political spectrum seems to dictate where one stands on the question of whether President Obama was right to call out the Supreme Court for last week's decision in Citizens United. The divide is less partisan over whether Justice Alito acted properly in mouthing/mumbling "No, that's not right" in response. So, from the right, e.g., Calvin Massey, Randy Barnett, Ann Althouse; from the right, e.g., Eric Muller, Jack Balkin (who adds a historical perspective), and Norman Williams' comments here. Refreshingly, Jonathan Chait of TNR can't understand the squeamishness from the left about a Republican disagreeing with the substance of a Democratic President's speech.
As usual, this is all silly. Of course the President (and any member of Congress) are entirely within the bounds of their structural powers and the doctrine of separation of powers to criticize the Court for its decisions. Especially when there is not much Congress can do to undo the decision. The other branches have largely ceded to the Court responsibility for constitutional interpretation; they cannot also cede the power to speak out about the Court's work. In fact, Obama's precursor about "all due deference to separation of powers" was unnecessary. Separation of powers assumes a conversation among the branches--they have to talk to one another, sometimes quite sharply.
Of course members of one governmental branch are free to criticize the actions of another branch of government. In the course of doing its job, the court must sometimes pass judgment on the actions of congress and the executive branch. Members of congress routinely criticize the president and the courts. And the president is free to criticize congress and the courts.
What makes this particular criticism of Obama so utterly hypocritical is the fact that Republican members of congress have regularly blasted the federal courts. Those awful unelected judges are overriding the will of the people. Sound familiar?
And here is President Bush criticizing the judiciary in his 2004 State of the Union address:
Activist judges, however, have begun redefining marriage by court order, without regard for the will of the people and their elected representatives. On an issue of such great consequence, the people's voice must be heard. If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process. Our Nation must defend the sanctity of marriage.
Last June, we also heard Senator McCain criticize the Supreme Court decision to allow Guantanamo detainees access to federal courts. But last night, McCain's former vice presidential running mate complained about Obama's lack of respect for separation of powers:
This is why people are disenchanted and are becoming more and more disengaged really from what their government is doing, because when we see an issue like this -- words spoken that may not be true coming from our president and embarrassing our Supreme Court and not respecting the separation of powers -- we have a problem.
No we do not have a problem. Presidents and congressional representatives from her party have criticized the courts, including the Supreme Court. It is their right to do so. This statement from Sarah Palin is the sort of stunningly silly comment that leads many to regard her as either a dishonest, pandering populist or a plain old ignoramus. I should note that it also possible to be both.
About That Grimace
As it happens, I am convinced that Obama is wrong about the predicted effects of the Citizens United decision. And I wasn't bothered by Alito's grimace or his mouthing the words "not true."
Still, if there is any area for reasonable disagreement about the Obama-Alito moment last night, it might be about decorum during the SOTU. Is it too impolite for the president to directly single out an individual or a small group of individuals in his audience for criticism during the SOTU address? Is it okay for members of the audience to grimace or silently mouth protest? Is it wrong for members of the audience to shout out their disapproval from time to time? Cheering and applauding is accepted; why not a little booing?
Granted, politeness is generally a good thing. I don't like the idea of shouting down a speaker from the audience. But the president is not a monarch; he is a politician.
I wouldn't want to see the president, congress or judges treated with a level of polite deference that rules out public criticism, even if it comes in the form of a grimace or a boo during the SOTU, as long as the president is not prevented from discharging his constitutional duty "to give to Congress information of the State of the Union and recommend to their Consideration such measures as he shall judge necessary and expedient."