Legal Commentary

Lithwick on Alito & the SOTU

By Jonathan H. Adler

In response to attacks on Justice Alito for shaking his head and mouthing ?that?s not true? in response to the President?s criticism of the Citizens United decision, Dahlia Lithwick writes:

There was absolutely nothing wrong with the president?s criticism of the court?s decision, although as Linda Greenhouse points out, he was less than precise in his description of the holding. But there was also absolutely nothing inappropriate about the justice?s reaction to him. Both the president and the justices are political actors, and all are entitled to screw up their faces and grumble in public as they see fit. Anyone who?s watched Alito at oral argument at the high court knows that he screws up his face and mutters to himself all the time. The suggestion that he was showboating or grandstanding last night is spectacularly unfair. Unlike several of his colleagues, Alito is meticulously polite, balanced, and measured on the bench, and goes out of his way to shun big drama. I?m sure if Alito could take it back this morning he would. I?m equally sure that if he attends the next SOTU at all, he won?t move so much as a muscle.

While I disagree as to whether the President fairly characterized the CU opinion, I think her overall assessment is spot on.  There?s nothing wrong with a President criticizing a Supreme Court opinion with which he disagrees, even in a State of the Union address, and there was nothing wrong with Justice Alito?s response.  Members of Congress often scowl or  indicate quiet disapproval with a State of the Union address, and Justice Alito?s gave a natural, muted response to strong criticism, and he can be forgiven for his naive belief that it would not end up on TV.

I understand why some don?t like the scene of a President lashing out at the Court while several justices sit before him ? but this is a matter of staging not substance.  There?s a long tradition of President?s criticizng the Court ? think Abraham Lincoln.  If we don?t like the image of a President scolding Supreme Court justices, the answer is not to muzzle the President.  Instead we should ask the justices to watch the SOTU from home.

Full post as published by The Volokh Conspiracy on January 28, 2010 (boomark / email).