Legal Commentary

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. Plus, as Norman notes, no one has threatened to act against the Court--no talk of impeachment or court-packing, or jurisdiction-stripping; just "you guys got this wrong and that's a problem." And, of course, Republicans have been running against the federal courts for years (although at this point they are running against a straw man because the Court that Republicans have demonized no longer exists); so why should Democrats not call out what the Court really is doing?*

Is there an argument that this did not belong in the State of the Union Address? I don't buy it. The state of the union is affected by what the courts do. If judicial decisions are, in the President's view, making the state of the union worse, he is obligated to make that point. And as Jack Balkin's post shows, Obama certainly is not the first President to do this in that very forum. Now certainly the decision in Citizens United is not comparable in its broad policy effect to what the Nine Old Men were doing to the New Deal when FDR called them out in 1937, so the effect on the state of the union is not as great. This makes Obama's shot somewhat gratuitous, perhaps, compared to, say, the Supreme Court invalidating the individual mandate should health reform pass. But that is a matter of policy preference.

• I make this point as the somewhat-rare Democrat and Obama supporter who believes Citizens United was correctly decided.