Home -> Law Blog Directory -> Academic Blogs -> The Faculty Lounge

Academic

: The Faculty Lounge

Wouldn't Alexander Bickel Be Smiling Today?

By Dan Filler, Laura Appleman et al.

<p>Calvin Massey <a href="http://www.thefacultylounge.org/2010/01/obamas-supreme-court-attack.html">says</a> that the President was showing "puerile anger" last night in criticizing the <a href="http://www.scotuswiki.com/index.php?title=Citizens_United_v._Federal_Election_Commission">Citizens United decision</a> in the presence of six of the nine Justices.</p><p>Ann Althouse <a href="http://althouse.blogspot.com/2010/01/justice-samuel-alito-mouths-it-appears.html">sees it this way</a>:</p><div class="blockquote" style="margin-left: 40px;"><em>I think that if [the Justices] knew they were going to have to listen to that kind of in-your-face disrespect, they wouldn't have done the President the honor of sitting there, providing the scenery. But they were there, and I'm not going to criticize Alito for moving his lips and letting us see a silent defense of the judicial branch of government.<br /></em></div><p><br />These comments reflect a different understanding of the place of the Supreme Court and of judicial review in our democracy from the one I teach.</p><p>What I teach is that the common image of the life-tenured, salary-protected Court as an institution apart from politics and insulated from accountability is mistaken.  I teach that one way to soothe concern about the <a href="http://en.wikipedia.org/wiki/Counter-majoritarian_difficulty">"countermajoritarian difficulty"</a> of judicial review is to recognize that the other branches of government -- the elected representatives of "We the People" -- can and sometimes do let the Court know when the Court has, in their view, gone astray.  On that view, the President's choice to criticize <em>Citizens United</em> in the Justices' presence was an unremarkable illustration of a healthy process.  If the President had called the Justices names, or mocked them, that would be a different story -- "puerile anger" and "in-your-face disrespect."  But he didn't do that.</p><p>Like Ann, I am not going to criticize Justice Alito for failing to sit there like a robot while his work was very publicly criticized, like the Chief Justice and Justice Kennedy did.  They're human beings.  I don't think that Justice Alito believes the majority did undermine one hundred years of precedent, and while we're accustomed to the notion that courts speak only through their opinions, I kind of like that Justice Alito reacted the way you'd expect a non-robot to react.</p><p>But unlike Calvin and Ann, I'm also not going to criticize the President for taking, rather than passing up, the very rare opportunity to give the Court a piece of his mind in a setting where We the People can all see him doing it.</p>

Full post as published by The Faculty Lounge on February 05, 2010 (boomark / email).