False Appearances

Justice Alito's reaction to President Obama's criticisms (perfectly appropriate criticisms imo) of the Citizens United decision (PDF) has led to criticism of Justice Alito's actions. Glenn Greenwald writes:

[T]he behavior of Justice Alito at last night's State of the Union address -- visibly shaking his head and mouthing the words "not true" when Obama warned of the dangers of the Court's Citizens United ruling -- was a serious and substantive breach of protocol that reflects very poorly on Alito and only further undermines the credibility of the Court. It has nothing to do with etiquette and everything to do with the Court's ability to adhere to its intended function.

There's a reason that Supreme Court Justices -- along with the Joint Chiefs of Staff -- never applaud or otherwise express any reaction at a State of the Union address. It's vital -- both as a matter of perception and reality -- that those institutions remain apolitical, separate and detached from partisan wars.

I think this analysis is fundamentally wrong. I'll explain why on the flip.

Glenn argues for appearances, false ones in this case. It has been a fundamental disagreement I have had with just about everyone - the Supreme Court is not above or detached from the political and ideological battles of the Nation. It is part of them. The Supreme Court is, in fact, a political institution. Pretending it is not has been extremely damaging - particularly during the confirmation processes. Glenn writes:

The Court's pronouncements on (and resolutions of) the most inflammatory and passionate political disputes retain legitimacy only if they possess a credible claim to being objectively grounded in law and the Constitution, not political considerations.

(Emphasis supplied.) This is absurd to me. The Justices act in ideological and political ways all the time. And doing so does not mean their actions are not "grounded in law and the Constitution." Instead it means it is grounded in their ideological and political views of what the law and the Constitution mean.

It has been my fundamental argument regarding the confirmation process that nominees should be required to discuss in depth their ideological and political views as applied to issues likely to be before the Court. Glenn and just about everyone else decries this approach, arguing for the need for the appearance of objectivity over the reality of knowing what nominees would do if they sat on the Court.

It is the forwarding of a fundamental falsehood - that Justices do not know how they will decide on certain issues until they hear the cases. This is, well, a lie. There is nothing surprising about the Citizens United decision and the Justices who voted for and against it.

It is silly to pretend that the Justices did not bring their preconcieved notions to the questions presented. We should know what these views are BEFORE the Senate decides whether to confirm nominees, not pretend that they will be objective. They won't be. False appearances do not serve any interest.

It is also ridiculous to think that Alito's actions lift the veil on anything. Alito voted with the majority in Citizens United. Obviously he disagrees with President Obama's characterization of the decision and its likely consequences. His actions confirm what his vote told us.

This is a tempest over nothing. Indeed, the tempest is, in my view, much more harmful than the actions.

Speaking for me only

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    i'm updating my post (5.00 / 1) (#6)
    by Turkana on Thu Jan 28, 2010 at 11:34:47 AM EST
    with a response...

    What post? (none / 0) (#10)
    by Big Tent Democrat on Thu Jan 28, 2010 at 11:38:39 AM EST
    Response to my post?

    heh (none / 0) (#11)
    by Turkana on Thu Jan 28, 2010 at 11:42:15 AM EST
    you mean you haven't seen the gos, today??

    Been working (5.00 / 1) (#15)
    by Big Tent Democrat on Thu Jan 28, 2010 at 11:46:11 AM EST
    I saw Greenwald because Josh Glasstetter sent it to our SCOTUS e-mail group.

    I hate this idealization of the Court. It is phony, incorrect and harmful.


    yep (2.00 / 1) (#22)
    by Dadler on Thu Jan 28, 2010 at 11:54:56 AM EST
    it's a form of the same thing obamabots have done with their savior, treated him like he was just above it all. which is why you'd think greenwald, as astute as he is, would at recognize it as such. i've had enough experience in traffic court, small claims, and on jury duty to understand, and clearly, that judges are human and incapable of being anything more lofty than that. no matter how much we believe they are/must be.

    i agree (none / 0) (#18)
    by Turkana on Thu Jan 28, 2010 at 11:51:17 AM EST
    and i hope the attention alito is getting will help dispel it. bush v. gore should have.

    I'm having an e-mail war (5.00 / 1) (#25)
    by Big Tent Democrat on Thu Jan 28, 2010 at 11:56:38 AM EST
    with Glenn as we speak over this.

    heh (none / 0) (#26)
    by Turkana on Thu Jan 28, 2010 at 11:58:22 AM EST
    shame it's not public- tell him it should be. would be fun to watch...

    The appearances . . . (5.00 / 1) (#28)
    by Big Tent Democrat on Thu Jan 28, 2010 at 11:59:48 AM EST

    I'm off to the airport.

    Have a nice day everyone.


    The bloggers, they are fighting! (none / 0) (#33)
    by andgarden on Thu Jan 28, 2010 at 12:03:38 PM EST
    heh. Bon Voyage.

    On the other hand...Linda Greenhouse (none / 0) (#67)
    by Andy08 on Thu Jan 28, 2010 at 05:22:04 PM EST
    didn't see in a positive light Obama's lashing at the court at the SOTU while the Court is politely sitting there...:

    Justice Alito's Reaction


    Obama Throwing Red Meat (5.00 / 2) (#69)
    by norris morris on Thu Jan 28, 2010 at 07:21:38 PM EST
    to the Left by chastising the Supremes.

     Silly, as they do as they wish. We all know how the conservatives in the court will vote as they do.  No surprises.

    This was poor behavior from Alito who couldn't control himself. And irrelevant pandering by Obama to show what a defender of truth and values he is.


    Glenn's a little overstated (5.00 / 1) (#23)
    by robotalk on Thu Jan 28, 2010 at 11:55:07 AM EST
    and you are understated.  Clearly did not display judicial decorum.  Clearly came off as displaying poor impulse control and being impetuous.  Judges do have a code of conduct, written and unwritten, that have a strong connection to basis rules of civil behavior.  Alito breached them.  

    there was nothing uncivil about it (none / 0) (#32)
    by Dadler on Thu Jan 28, 2010 at 12:03:03 PM EST
    a little surprising, sure, and quietly expressing disagreement, and indicative of more than a bit of intellectual bias, of course, but it wasn't loud or disruptive in any way.

    we have got to be a little more thick skinned than that. a truly free country sort of requires it.



    They do sort of frown upon (5.00 / 2) (#63)
    by inclusiveheart on Thu Jan 28, 2010 at 03:50:22 PM EST
    anyone responding when they have the floor in the Congress, actually.

    I thought the entire exchange was a bit strange on both sides.  I am not sure what directly calling out sitting Justices gets Obama.  It is not like we don't know that they are going to do whatever they want.  On top of all of that, Obama seems pretty enamoured with big biz these days.  I find it difficult to take him seriously when he talks about campaign finance reform.  I also don't have much faith that he has the political capital or cajones to really do anything about it.


    Forgot where I read it this morning... (5.00 / 1) (#24)
    by magster on Thu Jan 28, 2010 at 11:56:21 AM EST
    ...but someone somewhere pointed out that Sonia "lacks judicial temperment" Sotomayor sat stone faced next to Alito when Alito had his visible reaction.

    Thought that was an interesting observation...

    What should she have done (none / 0) (#47)
    by BrassTacks on Thu Jan 28, 2010 at 12:54:00 PM EST
    When Alito did what he did?

    Personally, I'm all about the pretense (5.00 / 5) (#29)
    by esmense on Thu Jan 28, 2010 at 12:00:17 PM EST
    So I'm with Greenwald here. I think one of the more unfortunate contributions my generation has made to the public discourse is a "let it all hang out" attitude that has destroyed the difference between the public and the private; between one's public persona,responsibilities and ideals and one's personal life and weaknesses.

    In the name of not being "hypocritical" we all now pay for an Alito's right to act boorish in public with the loss of our own expectation of privacy. The same reasoning that justifies Alito justifies discussions of the President's penis.

    Really, I don't need to see Alito's adolescent body language on display to discern that he and his collegues are not absolutely objective. Their history and actions tell me that. But, I would like to see enough public decorum demonstrated to suggest that objectivity may, occasionally, still be an ideal.

    Personally, I think anything that (5.00 / 1) (#30)
    by coigue on Thu Jan 28, 2010 at 12:00:32 PM EST
    brings further attention to that travesty of a decision...and that keeps people talking about it...is good. So, faux outrage away.

    I didn't take iot as faux outrage (none / 0) (#74)
    by BobTinKY on Thu Jan 28, 2010 at 08:28:45 PM EST
    He was exhorting Congress to take action to limit the impact of the decision.  

    Sorry, I wasn't clear. (5.00 / 1) (#78)
    by coigue on Thu Jan 28, 2010 at 10:21:10 PM EST
    The faux outrage is over the lack of decorum. THe real outrage is the decision itself

    What Alito did was abuse his lifetime (5.00 / 3) (#35)
    by BobTinKY on Thu Jan 28, 2010 at 12:09:30 PM EST

    Unlike Joe Wilson or Obama, to name just two, Alito will never answer to the voters.  For him to use his influential position to so publicly demonstrate where his political loyalties lie is a disgrace.  If he wants to do it in his opinions, which he and every other justice does, fine.  Congress, future justices & legal scholars can hold him accountable for that.

    Who holds him accountable for how he chose to use his posiiton and seat in the House last night?  To lend the prestige, and many folks still view the Court as presitigious, of the Supreme Court in opposition or support to statements of elected offical, all of whom will be held accountable by voters, is improper.

    This thing with Alito is emblematic (5.00 / 2) (#37)
    by Anne on Thu Jan 28, 2010 at 12:15:18 PM EST
    of the reason why I generally don't watch the spectacle of the SOTU; I don't want to be influenced by the reactions of those in attendance, any more than I want to be influenced by the pre- and post-debate spin from people who love controversy and latch onto it like it's all that matters.

    So I read the transcript - usually more than once - so it becomes really something more between me and the president than about the irrelevant minutiae of who applauded which kines and for how long, whether the VP and Speaker look bored or about to take a nap, who appears to be talking to whom and who looks like he or she is getting the cold shoulder.  I'm pretty sure there was a camera on Lieberman and commentary about how his colleagues were responding to him, right?

    Anyway, back to Alito: there were enough Democrats in the Senate who knew what Alito's presence on the Court would mean and could have fought his nomination, and there were rafts of media-types and pundits who knew the score on Alito, that I can't get too worked up about any outrage over what happened last night.  Alito's not a robot, the Court already ruled and time would be better spent looking at how or if something can be done via Congress to mitigate its impact.

    I (5.00 / 1) (#68)
    by lentinel on Thu Jan 28, 2010 at 07:18:27 PM EST
    thought that Obama's attack was really from left field.
    The State of the Union address didn't seem to me to be the appropriate forum for Obama to condemn a decision of the SCOTUS. I didn't get the point. And actually, the members of the court appeared to be guests at that gathering - and Obama laid into them without giving them a chance to reply.

    The issue for me is not whether the decision was good or just.
    It obviously isn't. The issue for me is the "sandbagging" aspect of it all. Inviting the SCOTUS without first informing that that they were about to be publicly criticized for a specific decision - and would be given no opportunity to respond.

    The good thing about all this is that the "decorum" rationalization for condemning this kind of behavior is now moot. I hope that some member of congress gets up and shouts at Obama to get us the hell of Afghanistan. Oh. My God. How rude!

    Like so many things in todays pundit driven (5.00 / 2) (#70)
    by samtaylor2 on Thu Jan 28, 2010 at 07:32:47 PM EST
    world. It seems like this should be put into the who gives a #$(*#&$# category.  

    Several different, (5.00 / 2) (#72)
    by NYShooter on Thu Jan 28, 2010 at 08:12:12 PM EST
    and disparate, arguments taking place here. I disagree with the position that because judges are political animals, and that they sometimes make rulings based on political (or personal) biases it's o.k. to publicly display those feelings. You don't even have to have much of an imagination to see how foolish that position is. A baseball player may be a closet racist, misogynist, or even have an unhealthy affinity for small farm animals; I think we`d all agree his feelings would be better served if kept to himself.  Also, we'd all agree, certain physiological, and hygienic, functions we mortals universally share are best shared.....with the door closed.....and the exhaust fan set on high.

    But, just as importantly, IMO, if we aspire to become a more civil, caring, and respectful society we shouldn't conflate class, dignity, and aspirations with hypocrisy.

    A few years ago I read about a group of street thugs, delinquents, participating in an experimental program at some detention facility. (now get your flaming snark-balls geared up): They were force-fed hours upon hours of "Leave it to Beaver, Father Knows Best, and Ozzie and Harriet" tapes. The results were quite astounding; instead of the  hoots, yelps, and jeers you'd expect, they sat and watched silently, as if mesmerized. (No, they weren't stoned.) Some of the toughest boys, and girls, were even visibly crying.... shamelessly. They just couldn't get enough of those schmaltzy, human cartoons.

    Of course they knew the programs were impossibly idealized caricatures of real families; they knew no one really lived that way. But, most coming from broken homes, they just loved seeing what perfect families could be like. They saw them as "goals," to aspire to.

    And Punk, or Judge, that ain't so bad.

    Ditto. Except I prefer to think (none / 0) (#1)
    by oculus on Thu Jan 28, 2010 at 11:14:04 AM EST
    justices do consider the case before them before making up their minds.

    P.S.  Be sure to link to Glenn's interview of you on this issue and Citizens' United decision.

    I agree (none / 0) (#2)
    by jbindc on Thu Jan 28, 2010 at 11:22:53 AM EST
    except it just looks bad for Alito to do that.  There's a reason the Supreme Court members and the Joint Chiefs don't applaud at the SOTU - it looks bad.  I can only imagine the righties' heads exploding had Ginsburg or Stevens done the same thing at a Bush speech.

    The interesting thing about Alito and this decision, though, is that he was the deciding vote.  Had Sandra Day O'Connor stayed on the bench,and Alito not been appointed, the ruling would have gone the other way - at least that's what Sandy O said the other day. And her biggest problem with it is that (wait for it), this decision has the potential to see a huge increase in corporate spending in state judicial races, which could lead to more influence and politicized decisions.

    "This rise in judicial campaigning makes last week's opinion in Citizens United a problem for an independent judiciary," she told an auditorium of lawyers and Georgetown University law students in Washington. "No state can possibly benefit from having that much money injected into a political campaign."

    Sorry, Sandy (5.00 / 4) (#39)
    by Blue Jean on Thu Jan 28, 2010 at 12:19:51 PM EST
    If Sandy had voted the other way on Bush vs. Gore, then Alito wouldn't have been appointed to her seat, thus he wouldn't have made the decision she deplores on Citizens United so none of us would be here, and wouldn't that be nice?

    This is the world your vote on Bush v. Gore made, Sandy.  Live with it.


    Obama should not have used that venue (5.00 / 3) (#43)
    by BrassTacks on Thu Jan 28, 2010 at 12:49:50 PM EST
    To comment on the Supreme court decision and Alito shouldn't have done what he did.  Both are human.  Both made mistakes.

    Obama shoudl villify this radical Court at every (none / 0) (#46)
    by BobTinKY on Thu Jan 28, 2010 at 12:53:42 PM EST

    Why? It just makes Obama look small (none / 0) (#51)
    by BrassTacks on Thu Jan 28, 2010 at 12:56:14 PM EST
    What purpose does it serve?  

    why does a substantive criticism (5.00 / 2) (#71)
    by coigue on Thu Jan 28, 2010 at 07:56:14 PM EST
    make Obama look small?

    I think flighty criticisms make people look small...if Obama had called him out on his bad breath, that would have been small. Calling Democrats socialist is small. Criticizing a very VERY bad decision is not small at all.


    If he really is committed to doing (none / 0) (#64)
    by inclusiveheart on Thu Jan 28, 2010 at 03:54:04 PM EST
    something in response to the decision, it makes sense that he would comment on it, talk about why he thinks it is wrong and discuss his proposed solutions.  But I don't believe Obama is going to do anything about CFR - and even if he really cared - the Senate would block him.

    That's the question for me -- the SOTU (none / 0) (#59)
    by Cream City on Thu Jan 28, 2010 at 02:29:00 PM EST
    venue is appropriate for a call to Congress to pass a law, sure.  But this venue also is a national broadcast, not just to Congress, and does using this venue complicate the problem of public respect of the Court and thus all courts, judicial process, lawyers, etc.?

    And a further problem, for those who like that Obama called out this awful ruling -- is that a SOTU that is a long list of more than an hour of many, many, many! issues.  And many issues, frankly, that may have more immediacy for most listeners in this economy.  (That is not to say I agree, as undermining our elections process did not and does not help this economy or anything else -- but direct economic issues are going to get most attention now from Congress, the media, the public, etc.)

    Burying this Court ruling and a call to Congress to act amid so many calls for so many actions was not the most effective way to win the action asked, if you ask me.  So do others here think that this will be effective?  Most effective?  The best means to get Congress to act on the Court ruling?  Obviously, I think it would have been more effective for Obama to make the call, make a speech focused on this, in another venue.

    All that said, Obama may -- may -- not have used the best venue by his actions.  That is far, far different from Alito's actions in the SOTU venue.  Again, if a relevant concern is public respect for the Court, the courts, the profession of many on this blog, Obama didn't blow that.  Alito did.


    Why does it look bad? (none / 0) (#3)
    by Big Tent Democrat on Thu Jan 28, 2010 at 11:29:10 AM EST
    Because someone decided it looks bad.

    It looks fine to me.


    I guess (none / 0) (#4)
    by jbindc on Thu Jan 28, 2010 at 11:33:02 AM EST
    People don't want jusges showing emotion about the SOTU anymore than they would find it appropriate if a judge made a face and mouthed the words "Not true" while a witness testifies in court.

    Hardly the same thing (none / 0) (#9)
    by Big Tent Democrat on Thu Jan 28, 2010 at 11:38:09 AM EST
    Alito's view on Citizens United is not a secret. His vote was there to be seen.

    BTW, if a trial judge was the fact finder in a case and said he did not believe a witness, what would be the harm in the case?


    There would be harm (none / 0) (#13)
    by jbindc on Thu Jan 28, 2010 at 11:43:41 AM EST
    if a jury was the fact finder, no?

    Very much so (none / 0) (#16)
    by Big Tent Democrat on Thu Jan 28, 2010 at 11:47:14 AM EST
    A mistrial would be in order.

    Alito's actions are not analagous. They are analagous to my hypothetical.


    I disagree (none / 0) (#42)
    by BobTinKY on Thu Jan 28, 2010 at 12:48:49 PM EST
    in our system Congress acts as the fact finder.  Legislation is based on Congressional fact finding and Alito & co.  rule from time to time on the legislation's Consitutionality, its legality in effect.  SCOTUS does not second guess or re-appraise the facts or reasons why Congress enacted a particular statute (not since the Lochner era anyway), they simply assess whether the legislation passes Constitutional muster, and/or divine the meaning of the legislation.

    At present there are those in Congress who will undetake an assessment of whether the Citizens decision requires legislation to outlaw foreign-owned corportions from participating in US elections.  That will require Congress to not just ascertain their own view of the decision, and the need for any remedial legislation, but to also factually determine what is a "foreign controlled" corporation, among other issues.  

    That the President used this opportunity before a Joint Session to encourage Congress to act is entirely appropriate.  He should announce and support with his reasoning his legislative initiatives and objectives.  

    It is not for Alito, in the course of his official duties as a justice (which is what he was doing there last night), to make or direct the President's case for his position. It is also not for Alito to pre-empt or attempt to influence Congressional fact finding and potential legislation.  He and his colleagues will get there opportunity to review Congress's work if and when Congress's enacts (and Oabma signs) new laws.


    It was a case they already heard though (none / 0) (#14)
    by cawaltz on Thu Jan 28, 2010 at 11:45:43 AM EST
    I don't know why anyone would be surprised that Alito disagreed with the President, shaking his head or elsewise. It isn't like his opinion and the dissenters aren't on record. So I see the head shake as pretty trivial. It would have been entirely different if this had been something like him shaking his head over DADT or something where he might be expected to hear arguments impartially later on down the line.

    Did it look bad for Obama (none / 0) (#7)
    by me only on Thu Jan 28, 2010 at 11:35:28 AM EST
    to criticize members of the court from the bully pulpit?  Is it okay to pick on people in front of them knowing they cannot respond?

    I can only imagine the righties' heads exploding had Ginsburg or Stevens done the same thing at a Bush speech.

    I can only imagine what would have happened if Eisenhower had not foretold of the Military Industrial Complex and instead picked on Earl Warren in his SOTU address.  Doubt the left would constantly quote from the speech.


    Yes (none / 0) (#8)
    by jbindc on Thu Jan 28, 2010 at 11:37:03 AM EST
    But he's a politician trying to score political points.

    While I would never be considered for any (none / 0) (#20)
    by me only on Thu Jan 28, 2010 at 11:51:46 AM EST
    position for any position that would have my presence at the SOTU address.  If I had been in Alito's shoes, I would have pulled my phone out at time and said, "sorry Guantanamo calling, guess you didn't really close it like you said you would", and then mutter "a$$hole" under my breath.

    I mean if you are going to take cheap shots for political points, expect people to respond.  So Alito found a halfway respectful way to say "duck off."


    It is not a cheap shot at all (5.00 / 1) (#41)
    by BobTinKY on Thu Jan 28, 2010 at 12:33:18 PM EST
    he is a politician whom unlike Alito, will go before voters who can hold him accountable for using his position to epxress his views on the Citizens case.

    Andrew Jackson, FDR,   Eisenhower, all criticzed the Court.  Republicans criticize Roe v Wade all the time including Reagan and both Bushes.

    Only Congress can attempt to correct for a bad Court decision.  There is nothing cheap or wrong in Obama using a speech to a joint session to exhort Congress to do just that.


    A well did FDR (none / 0) (#66)
    by cal1942 on Thu Jan 28, 2010 at 04:09:43 PM EST
    Speeches made after the NRA was struck down and finally the 'court packing' controversy.

    The court is political as BTD says. During the "court packing" controversy the court finally upheld minimum wage laws and ruled in favor of the Wagner Act.  

    After uncharacteristically upholding the Wagner Act and minimum wage laws, Court members began resigning allowing Roosevelt to appoint more liberal judges.

    FDR has been criticized for the court packing idea. I feel that he lost the battle but won the war.

    The court is certainly political and also responds to political pressure.


    Eisenhower "picked on" Warren and (none / 0) (#44)
    by BobTinKY on Thu Jan 28, 2010 at 12:50:49 PM EST
    Brennan quite a bit.

    Yes, but not during the SOTU (none / 0) (#56)
    by me only on Thu Jan 28, 2010 at 12:58:14 PM EST
    address.  If you do in front of them, expect a response.  So don't do it when they are not supposed to respond.

    FDR (5.00 / 1) (#77)
    by call me Ishmael on Thu Jan 28, 2010 at 10:17:21 PM EST
    criticized the SC at the State of the Union.  There is nothing new about this technique

    Well, I recall that Ike (none / 0) (#58)
    by brodie on Thu Jan 28, 2010 at 02:27:50 PM EST
    said at some point that nominating Warren was "the biggest damn fool mistake I've ever made."  Of course, Ike neglected to disclose that the appointment was (almost certainly) part of a political deal made at the 1952 convention where Warren, with presidential ambitions of his own, cut a deal with Ike to support him in return for the first Ct opening.

    As for Brennan, I don't remember Ike dissing him.  Brennan was a registered Dem of mod-lib inclinations, whom Ike wanted to appoint to the High Court in the leadup period to his re-elect in 56, as a way for Ike to display his "bipartisan" chops to the electorate.


    It would seem difficult not (none / 0) (#5)
    by KeysDan on Thu Jan 28, 2010 at 11:34:26 AM EST
    to agree with BTD.  The procedure, itself, has always seemed to be confirmatory of that view in that after hearing, votes are taken, and then writing is assigned based on that voting.  True, some  votes have been changed after persuasive drafts have been circulated, but these, I think, are more the exception than the rule.  However, Alito was in the majority in this case and it is his opinion that rules. It seems unnecessary, if not unseemly, to  pantomime or otherwise defend or re-argue the case in this venue.  

    Indeed (none / 0) (#12)
    by andgarden on Thu Jan 28, 2010 at 11:43:35 AM EST
    Just read the opinions in any given term. These are humans with opinions.

    Agree (5.00 / 1) (#45)
    by BrassTacks on Thu Jan 28, 2010 at 12:51:26 PM EST
    But we do have a separation of powers.  I don't recall any past President criticizing the Supreme Court in a state of Union speech.  I thought it was poor form on Obama's part and poor form on the part of Alito.  

    heh (none / 0) (#49)
    by andgarden on Thu Jan 28, 2010 at 12:54:24 PM EST
    Jack Balkin has a longer memory:

    About a fourth of Roosevelt's 1937 State of the Union Address was devoted to criticism of the Supreme Court for striking down New Deal legislation and asserting that the Court should adopt a different method of constitutional interpretation. As Randy Barnett puts it, what a "shocking breach of decorum"! The nerve! The nerve! We should take this man off the dime immediately

    Beat me to it & with quotes (none / 0) (#53)
    by BobTinKY on Thu Jan 28, 2010 at 12:56:22 PM EST

    Beat me to it & with quotes (none / 0) (#54)
    by BobTinKY on Thu Jan 28, 2010 at 12:56:40 PM EST

    Ah yes, that's why I don't recall it, (none / 0) (#55)
    by BrassTacks on Thu Jan 28, 2010 at 12:57:36 PM EST
    It was before I was born.  Was that during the time when Roosevelt was attempting to expand the court to get more off his people on it?  

    I am willing to bet FDR did (none / 0) (#50)
    by BobTinKY on Thu Jan 28, 2010 at 12:55:43 PM EST
    and for good reason

    So he could increase the size of SCOTUS? (none / 0) (#57)
    by BrassTacks on Thu Jan 28, 2010 at 12:58:59 PM EST
    Yes, that would be a good reason to criticize them, to get the Congress to agree to increase the size of the court.  I seriously doubt that's Obama's goal.  But who knows?

    Or listen to any (none / 0) (#31)
    by coigue on Thu Jan 28, 2010 at 12:01:54 PM EST
    randomly chosen Scalia speech.

    I had very different (none / 0) (#17)
    by brodie on Thu Jan 28, 2010 at 11:51:00 AM EST
    reactions to the last two audience reaction-incidents involving Obama and Congress.  The first one by the SC idiot I thought was an ugly and disrespectful interruption that was worthy of formal notice of disapproval by the body (which it eventually was).  

    This latest was neither ugly nor did it interrupt the proceedings.  Didn't bother this Dem in the slightest.  Added to the entertainment value of the event, in fact.

    As for purist Greenwald, with whom I often agree, I would have thought the old Felix Frankfurtian notion of the Justice as being purely objective and above mere-human political and personal influences was thoroughly discredited no later than the Bush v Gore black mark day for the Court.

    Time for a term limit on all fed judges.  14-18 yrs.  With a replacement component for physical and/or mental incapacity.  Meanwhile, Congress needs to reassert itself w/r/t Scotus in the area of impeachment.

    Impeach who and for what? (none / 0) (#21)
    by me only on Thu Jan 28, 2010 at 11:54:50 AM EST
    I cannot think of a Supreme Court justice that would have ever been successfully impeached.

    Two or 3 J's (5.00 / 1) (#34)
    by brodie on Thu Jan 28, 2010 at 12:06:27 PM EST
    for not recusing themselves in the B v G case when they or their immediate family members had ties to the Bushies.

    Before that, whenever it was that Rehnquist testified (1986 or so) for his elevation to CJ, when he may have committed perjury on a few items (minority voter suppression activities in the early 60s, and a certain memo as a clerk to Justice Roberts which Rehnquist claimed, falsely it seems, did not reflect his actual views).

    Point is, the senate confirmation hearings have become something of a sham of late -- Justices-to-be are carefully coached on how to answer and how to obfuscate the truth.  

    Perhaps the misleading public hearings should be done away with, since they're being defeated anyway by cleverly counseled, slick nominees -- provided some of the other tougher measures and steps I noted above are put in their place ...


    Not gonna happen (none / 0) (#38)
    by jbindc on Thu Jan 28, 2010 at 12:17:35 PM EST
    There have only been 8 federal judges impeached and removed from the bench - ever.

    But one is about to get impeached soon.  For this kind of stuff.


    For sure, as long as (none / 0) (#61)
    by brodie on Thu Jan 28, 2010 at 02:35:29 PM EST
    Congress treats the SC Justices as demi-gods not to be touched for any reason however outrageous and improper once confirmed, then impeachment will remain off the table.

    But I post in order to suggest Congress needs to change its passive mindset towards the least accountable branch of gov't in the history of democratic gov't.

    A fixed years term of office, with other additional and reasonable restraints, including using actually existing tools at Congress' disposal, would remind Scotus that they are in fact human and accountable for their actions.


    The Senate could just nip this kind of (none / 0) (#65)
    by inclusiveheart on Thu Jan 28, 2010 at 03:59:03 PM EST
    stuff in the bud by actually vetting these candidates instead of falling all over themselves to appear welcoming.

    and by refusing (none / 0) (#75)
    by BackFromOhio on Thu Jan 28, 2010 at 09:06:34 PM EST
    to proceed with hearings when requests for information or documents are ignored

    Total waste of time (none / 0) (#52)
    by me only on Thu Jan 28, 2010 at 12:56:21 PM EST
    None of them will be convicted.  If it ever happens, I will bet you not even half the Senate votes for conviction, let alone 2/3.

    All the Bush v. Gore majority, rather (none / 0) (#40)
    by BobTinKY on Thu Jan 28, 2010 at 12:23:59 PM EST
    what remains of it, ought to be impeached.

    Talk about your political questions.  On top of that, and this is the point that is often never discussed, the Constitution expressly (i.e., literally for any Scalia fans) provides a process to resolve disputed Presidential and Vice Presidential elections.  Nevertheless, the literalist, originalist Scalia leads a group of 5 non-activist, conservative justices to ignore that Constitutional process (which had been relied upon at least twice in the past) and instead create not just new law,  but a new Constitutional role for the Supreme Court.

    As an aside, the deciison was not handed down to insure Bush would be Presdient, the same outcome would have ocurred had the election of the President been decided by the GOP controlled House.  The decision was made to prevent Al Gore from being elected Vice-President by the Democratic controlled Senate.  Loserman (the GOP had that right!) was needed in the Senate to maintain the Dem majority and Senators were not bound to vote between the two candidates for VP (see the Jefferson Burr 1800 election).  

    Imagine Gore had been properly elected VP.  Cheney would have been at most a Cabinet Secretary and unable to hide behind the "protection" of his Constitutional "fourth branch" office.   Gore could have opposed the Iraq War, or called attention to Bush's pre-9/11  negligence from his seat on the NSC.    

    That is the potential situation that prompted our illustrious originalists to invent new Constitutional procedure.  


    Did you even bother too look up (5.00 / 1) (#48)
    by me only on Thu Jan 28, 2010 at 12:54:20 PM EST
    the requirements for conviction?  It takes a 2/3 majority.  Not one Democrat agreed that Bill Clinton was guilty of lying under oath (he was later disbarred).  Impeachment of the SC Justices would be viewed as a political move.  No Republican would vote for conviction.

    The whole process would be a monumental waste of time resulting in more hostility in regards to SC nominations.  


    2/3 to convict, House majority to impeach (none / 0) (#73)
    by BobTinKY on Thu Jan 28, 2010 at 08:26:40 PM EST
    not that I think it will be done, just that it should be.  Bush v Gore was a clear cut abuse of power of the office.

    The only thing that will prevent (none / 0) (#19)
    by Militarytracy on Thu Jan 28, 2010 at 11:51:28 AM EST
    a bunch of Dems rubber stamping a really crazy conservative President's next Supreme Court nominations is if everyone admits the truth that the Court is political, is about politics, intends to and does affect policy for purely political reasons.  The court is not Godlike, very far from it.

    just glad (none / 0) (#27)
    by Capt Howdy on Thu Jan 28, 2010 at 11:58:32 AM EST
    the wingers have something to talk about today besides gays in the military.

    Another divergence of opinon (none / 0) (#36)
    by Jeralyn on Thu Jan 28, 2010 at 12:13:39 PM EST
    between legal reporters Andrew Cohen (The Slam That Wasn't) and Jan Greenberg who calls it shocking and something that rocked the legal world. Much hyperbole in my view.

    I think it's much ado about nothing both with respect to Obama's comments and Alito's reaction.  All Obama said was that because of the court's decision that reversed a century of law, he's going to ask Congress to act. All Alito did was take exception with Obama's interpretation of the consequences of the decision. Neither is improper.

    I agree with BTD and Cohen here. I haven't read Glenn yet.

    I disagree, TL (5.00 / 5) (#62)
    by Peter G on Thu Jan 28, 2010 at 03:06:53 PM EST
    The standard for public judicial behavior is that a court opinion, once issued, speaks for itself, as far as what was decided was concerned.  The judge does not publicly "explain" a decision once made, or defend it from criticism.  Lawyers who are not judges are free to do that (criticize the opinion, or defend it from criticism).  But what Justice Alito did here is worse than just disregarding that conventional (but sometimes violated) practice.  Here, it seems to me, he publicly expressed his views on the implications of the Citizen United opinion on issues not decided there -- such as the validity of the existing campaign finance restrictions as applied to foreign-owned corporations.  On any such question that might come before the Court for decision, it is totally improper for any judge, including any Justice, to express an opinion in public, off the bench, and outside the context of judicial decisionmaking.

    Agree w Peter G, but requirements of (none / 0) (#76)
    by BackFromOhio on Thu Jan 28, 2010 at 09:13:14 PM EST
    judicial code of ethics do not change the fact, as BTD points out, that the Supreme Court has become political.  IMO, when it acts in a political way that violates judicial conduct rules, as in Bush v. Gore, we have a duty to call them on it.

    Nothing surprising? (none / 0) (#60)
    by Jim on Thu Jan 28, 2010 at 02:32:21 PM EST
    "There is nothing surprising about the Citizens United decision and the Justices who voted for and against it."  It was surprising to me, a non legal beagle, that all of them agreed that a corporation is a person.  Was that surprising to the lawyers here or not so much because of precedent?  Does it seem that the conservatives disregard precedent and the liberals hold to it?

    For me, the fact that ... (none / 0) (#79)
    by Robot Porter on Fri Jan 29, 2010 at 12:07:45 PM EST
    Supreme Court justices are political appointees is all you need to know.

    Greenwald usually cuts through the crap, and attempts to see things as they are.  

    But in his post on this subject he's far off in some la la fairyland where dreams easily become reality.