The President and the Court

This week, the Obama White House achieved at least one objective that I’m sure was part of the plan when they scheduled the State of the Union on a Wednesday. Since the speech was placed squarely in the middle of the week, the President completely dominated the news cycle from Monday to Friday. In the end, I don’t see this redounding to his favor.

 There was one occurrence that stands head and shoulders above the rest, though: President Obama lashed out against the Supreme Court’s 5-4 ruling this week, striking down key provisions of the manifestly unconstitutional McCain/Feingold bill that President Bush had signed into law in 2002. (Many believed at the time that President Bush secretly hoped the Court would act exactly as it now has, though it took quite a while longer than expected.) Obama’s Democrat allies stood and applauded, but the Supreme Court justices sat poker-faced…all except for Samuel Alito, who can be seen from any camera angle, frowning and mouthing “Not true” back to the President.

By now, 48 hours out, just about every conceivable sentiment, pro and con, has been proffered by some pundit, politician or scholar, on most aspects of the speech. The overarching meme of the mainstream media was that this was Judge Alito’s “Joe Wilson moment.” Leaving aside the obvious points that could be made that 1) many still feel that what Joe Wilson said was, in fact, accurate, if a bit rude and 2) Wilson made a vocal utterance in a  half-second of silence in the chamber while Alito merely mouthed the words…

Is not Samuel Alito, as a legitimately appointed and confirmed Supreme Court Justice, entitled to the same hearing as the President of the United States? Would the same sense of outrage prevail in the mainstream media, had Stephen Breyer formulated silent, but readable divergence with the opinion of George W. Bush in a similar scenario?

But amidst all of the hue and cry and the return fire defending Alito in conservative talk, there is one pertinent historical nugget I have not heard mentioned. Many conservatives have correctly cited the gall of a President to rake Supreme Court justices over the coals in a State of the Union address, with said justices sitting right in front of him and, fittingly enough, to his right. I became curious about when the last time was that a President criticized a Supreme Court verdict in the Capitol House Chamber, while reporting on the State of the Union. Mentally, I had gone back to the time of FDR, assuming that surely, with his notorious statist overreach and attempts to pack the Court with his acolytes, Roosevelt had inveighed against SCOTUS in a SOTU speech? I was wrong. According to the “National Law Journal” blog, it has never happened before. (Read the “National Law Journal” and “Legal Times” joint commentary here.)

So the President has set another record, one that may prove more historically relevant over the long term than his Nobel Peace Prize. Don’t forget that the President is a Constitutional lawyer. He knows what it says, but views it as a “charter of negative liberties”, after all. Yet, when the Court partially restores our liberty to support the causes in which we believe, thus underscoring the provision of the First Amendment, the President not only begs to differ, but does so in a publicly shaming fashion to the purveyors of that verdict. In so doing, the President has entered uncharted waters yet again. One fears: Not for the last time.

The President wants to send a message to the John Roberts Court that he will not accept its originalist rulings as viable. This is intimidation and pushiness at a time when the President needs to be pivoting if he has any concern for his political life. But Barack Obama is not Bill Clinton; where Clinton was the contrary, Obama is a true believer and ideologue first before he is a politician. It will cost him.

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