Supreme Court Gets a Rare Rebuke, in Front of a Nation

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Washington Memo
Supreme Court Gets a Rare Rebuke, in Front of a Nation

By ADAM LIPTAK
Published: January 28, 2010

WASHINGTON — It is not unusual for presidents to disagree publicly with Supreme Court decisions. But they tend to do so at news conferences and in written statements, not to the justices’ faces.

President George W. Bush, for instance, did not hesitate to criticize a 2008 ruling recognizing the rights of prisoners held at Guantánamo Bay, Cuba — but he did it at a news conference in Rome. President Richard M. Nixon said he was disappointed with a 1974 decision ordering him to turn over the tapes that would help end his presidency — in a statement read by his lawyer.

President Obama’s approach at the State of the Union address Wednesday night was more personal, and he seemed a little self-conscious about it.

Before he began his attack on a Supreme Court decision not yet a week old, Mr. Obama added a few words that had not been in the prepared text. The new preface — “with all due deference to separation of powers” — seemed to acknowledge that he was aiming unusual rhetorical fire at several Supreme Court justices sitting right in front of him.

Justice Samuel A. Alito Jr., one of the justices in the majority in the decision under attack, shook his head as he heard the president’s summary of Citizens United v. Federal Election Commission, and he appeared to mouth the words “not true.”

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It was not quite the shouted “You lie!” from Representative Joe Wilson, Republican of South Carolina, at September’s presidential address to a joint session of Congress. But in its way, the breach of decorum on both sides was much starker.

Peter G. Verniero, a former justice on the New Jersey Supreme Court, said neither end of the exchange helped the prestige of the United States Supreme Court.

“The court’s legitimacy is derived from the persuasiveness of its opinions and the expectation that those opinions are rendered free of partisan, political influences,” Mr. Verniero said. “The more that individual justices are drawn into public debates, the more the court as an institution will be seen in political terms, which was not the intent of the founders.”

Modern presidents and Supreme Court justices do not interact very much, and this particular president might be expected to have strained relationships with at least Justice Alito and Chief Justice John G. Roberts Jr., both of whose nominations he voted against as a senator. The president and chief justice would both also probably like to forget the flubbed administration of the presidential oath at Mr. Obama’s inauguration last year.

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On the campaign trail, Mr. Obama, a former professor of constitutional law, spoke about several recent Supreme Court decisions, but not in a predictable way. He said he agreed with the Supreme Court’s 2008 ruling finding that the Second Amendment protects an individual right to bear arms. Like Citizens United, it was decided by a 5-to-4 vote and featured the same five conservative justices in the majority.

Mr. Obama said he disagreed with another 2008 ruling, this one barring the execution of child rapists. In that decision, though, the court’s liberals were in the majority.

He was, however, harshly critical of a 2007 sex-discrimination ruling barring a suit from Lilly M. Ledbetter on statute of limitations grounds. The majority opinion in the 5-to-4 ruling, dividing along the usual ideological lines, was written by Justice Alito.

All of those decisions landed before Mr. Obama took office, though he signed legislation reversing the Ledbetter decision soon after he arrived. Citizens United represents his first major confrontation with the court as president.

Presidents have mentioned the Supreme Court only rarely in State of the Union addresses, usually to make a general point or to note the nominations or retirements of individual justices.

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In 2004, President Bush did seem to take aim at Massachusetts’s highest court, which had two months earlier ruled in favor of same-sex marriage. “Activist judges,” Mr. Bush said, “have begun redefining marriage by court order.”

Wednesday’s turnout of justices was fairly high by recent standards. Six justices were present, three from each side of the 5-to-4 Citizens United decision. The author of the majority opinion, Justice Anthony M. Kennedy was there, along with Chief Justice Roberts and Justice Alito, both of whom joined the majority opinion. The three dissenters present were Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor.

The sharp attack from the president, echoing those of other Democrats and their allies, suggested that the left has found a decision to rail against, even if there is not much that can be done about it.

On Thursday, Senator Patrick J. Leahy, Democrat of Vermont, was on the Senate floor, calling Citizens United “the most partisan decision since Bush v. Gore.”

The core of the Citizens United decision said corporations have a First Amendment right to make independent expenditures in candidate elections. Only a constitutional amendment, which is exceedingly unlikely, could undo that core holding.

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The flashes of discord between the two branches might have been avoided had the justices followed the example of Chief Justice William H. Rehnquist, who once skipped the State of the Union address in the Reagan era to attend to other matters.

The speech “conflicted with the watercolor class he was taking at the local Y.M.C.A.,” Chief Justice Roberts, who had served as a law clerk to Chief Justice Rehnquist, recalled last year. “He had spent $25 signing up for the class, and he wasn’t going to miss one of the sessions.”

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Several justices, in the first two rows, were sitting right in front of the president when he attacked the campaign finance ruling.