Thursday, January 28, 2010

Oh No, Justice Alito!

Thursday, January 28, 2010

The picture shows confidence, calm, and a pleasant demeanor. A smile that indicates that he will not worry about criticism from the right or the left, keeping his focus on the constitutional obligation to uphold our founding document.

If we pull a George H. W. Bush, we can clear see a different story.

Read Justice Alito's lips: that's not true.

And if you read his body language after President Obama's judgement on the Supreme Court's recent ruling on campaign support, you can see that the stoicism from Alito may not be as true, either.

So much for the notion that the Supreme Court is a ruling body that operates outside of the influences of emotion or concern for anything other than a just interpretation of the Constitution.

Perhaps judicial activism - or emotional investment - isn't just a liberal stronghold anymore.

For as bold as the president's stance was to take on the Supreme Court as Commander-in-Chief (and former constitutional law professor) during his first State of the Union Address was, it was also bold for the justice to knowingly mouth "...not true..." during a round of applause in response to the president's statement, especially as he must have known that cameras were catching responses throughout the room (especially after Congressman Joe Wilson's (R-SC) remarks in September.)

Usually, it is the Supreme Court that fits into the role of populist defender, guarding the rights of America and her citizens as afforded in the Constitution against the special interests of politicians and significant policy makers. Everything from defending the premise of equality (Brown v Board of Education) to the very nature of its makeup (the infamous FDR attempt to stack the Supreme Court with his choice of justices with a 1930s quasi-pyramid scheme to expand the number of justices on the court) has been under the umbrella of the Supreme Court in its quest to defend the tenets of the nation as a populist gatekeeper. President Obama's televised rebuttal from the presidential bully pulpit changed that dynamic.

As, perhaps, rightfully so, a point that rubbed Justice Alito - and perhaps judges modeling his style of ruling from this decision - the wrong way in such a public place.

Washington as usual has been defined as the ability of big dollars and big business to influence the manner of everyday politicking moreso than the everyday Americans that congresspeople represent through the election process. This ruling, on face value, seems to jeopardize the ability of the everyday American (i.e., the guy or lady without the "deep pockets" that a select few have) to have a tangible voice in the political process, particularly regarding campaign advertisements and big-dollar donations to campaigns that shift the attention span of candidates from the populace to the lobbyists. Regardless of the legal arguments stating that the risk is minimal at best (it may be true that the law directly speaking to foreign-based corporations was not addressed or changed by the Supreme Court last week), the fact remains that a risk was taken - perhaps inappropriately - by the Supreme Court in reversing this previous statute in favor of big businesses, notably at at time when big business has been able to receive bailout money without much responsibility to the American taxpayer for
regarding ethics (i.e., keeping the big bonuses in place) or recovery (i.e., not using the money to annul this trend of unemployment).
Usually, it is the Supreme Court that has to remind a president of the jeopardy incurred when American endeavors are not in line with basic premises of the Constitution - namely, a republic where the everyday American is represented and listened to by its government without impediments of race, gender, previous servitude, or other labels that do not strip our citizenship (such as socioeconomic background.) In this instance, it worked the other way around.
President Obama got it right - we cannot allow corporations even more ability to buy-and-sell politicians, political agendas, and voting influence if we are going to continue the march towards rebuilding the best of America as we renew our nation. Call it politically convenience (many big businesses may come out against the president during Election 2010 because of his unpopularity at the polls right now) or populist fury (a renewed political personality that the president seems to have taken on since the turn of the year) if you will, but Obama's stance seems to be both anomalous - but correct - turn for the administration to change how Washington "is done" today.
It will be interesting to see how Washington plays out from here after suck a public calling-out by the president towards the Supreme Court. President Obama seems willing to take on perceived naysayers and opponents in a fight to earn back the confidence of the American people. Since day one, that has included Republicans, but perhaps it will now also include Republicans on the non-partisan bench of the highest court of the land. The Court may continue to find itself being criticized by a former law professor that has the rare eloquence, a new (or renewed, based on your view) populist backbone, and the ultimate bully pulpit (the presidency) to cast down judgement even after the final ruling has been sent down from the Court. The non-partisan Court - full of political appointments - may soon find itself reminiscing of the times when being political meant merely taking sides on Roe v Wade. The thoughts of that must make the members of the Court hold firm on the stoicism and disregard of outside detractions needed to clearly uphold the Constitution and the best of our nation's legal realities for freedom, even when Obama and the Court disagree on particular decisions.
Especially if this president continues to take a populist stance to wipe the smiles off of a justice's face.


  1. Lenny, I always appreciate your writing and have respect for your opinions but you could not be more wrong about this. When Alito mouthed "not true," there is no reason to believe he was making a political statement at all. He was simply making the statement that the President had incorrectly presented what the Supreme Court's ruling had actually done. It had not opened up the ability for foreign entities to influence our elections. What it had done is restore the meaning of the First Amendment. Because at the base of the First Amendment, if the words inscribed there mean anything at all, then surely they prevent the government from putting people in jail for freely associating themselves with each other and engaging in political speech. If you don't like how that may affect elections or the so-called "everyday American" (as if "everyday Americans" can't be involved in corporations) then your quarrel isn't with the judiciary but with the Constitution. Is enforcing the First Amendment dangerous to the American electoral process? I may have to agree. There is no more dangerous force in the world than a free citizen with the ability to advocate for an idea. But the dangerous form of government is the one we have selected, and if we want to change that now then we must do it by rewriting the Bill of Rights.

  2. Well said Lenny, however, what about Protocol and Etiquette afforded the United State Supreme Court Justices? When the President sets such a negative example, those who aren't Constitutional Attorneys, tend to think its okay to "Bully" the Justices.

    Debbie Beech

  3. Lenny,

    You got it wrong and Brent Woodcox is right.

    Alito was responding to the FALSE statement which the President made concerning the affect of this ruling on Foreign entities.

    The President said:
    "last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. (Applause.) I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities."

    Both times that he used the word "foreign" in that extract, he was factually incorrect.