on Jan 29, 2010 at 10:54 am
President Obamaâ€™s criticism of the Supreme Courtâ€™s recent Citizens United decision in Wednesdayâ€™s State of the Union address dominated the headlines yesterday and today.Â A number of news outlets commented yesterday on Justice Alitoâ€™s immediate reaction to the criticism.Â Reuters reports on the incident, quoting SCOTUSblogâ€™s own Tom Goldstein, while at CBS News, Jan Crawford posits that Obamaâ€™s direct attack on the Court suggests that he might try to stretch the Citizens United debate into the confirmation process if Justice Stevens retires this year.Â Â ABC News quotes University of Texas law professor Lucas Powe, who speculates that the Justices will likely opt not to attend the State of the Union address next year, while Robert Barnes, writing for the Washington Post, points out that each Justice chooses whether to attend the State of the Union address each year (this year, Justices Stevens, Scalia, and Thomas all skipped the speech).Â And Georgetown law professor Randy Barnett suggests, in this Wall Street Journal opinion piece, that because the Justices attend the address as a courtesy to the President, Obama may owe them an apology.Â In the New Republic, Jonathan Chait notes that the Citizens ruling and President Obamaâ€™s response may signal the beginning of a deeper division between the Court and the legislative and executive branches.
In addition, the debate has already begun over the appropriateness of both President Obamaâ€™s words and Justice Alitoâ€™s response.Â Ashby Jones, writing for the WSJ Law Blog, excerpts opinions voiced by other commentators, all of whom seemed to agree that â€“ regardless whether it was appropriate â€“ Obamaâ€™s direct criticism of the Courtâ€™s decision was unprecedented in State of the Union history.Â (Adam Liptak echoes this theme in the New York Times, noting that although presidents have often publicly criticized the Court, they have rarely done it during a State of the Union address.)Â At Politico, Andy Barr reports that Republican Senator Orrin Hatch has denounced Obamaâ€™s criticism as â€œrude,â€ but Manu Raju notes in a second article in Politico that Democratic Senator Russ Feingold was just as quick to characterize Justice Alitoâ€™s reaction as â€œinappropriate.â€Â The Atlantic Monthlyâ€™s Andrew Cohen argues that the public shock over President Obamaâ€™s remarks is overblown.Â The President â€œhad to mentionâ€ the Citizens United ruling in his speech, Cohen reasons, and his attack on the decision should not necessarily be characterized as â€œfiery.â€Â The Los Angeles Times and the Wall Street Journal (here and here) also have coverage of the dispute.
At Salon.com, Glenn Greenwald characterizes Justice Alitoâ€™s visible response to Wednesdayâ€™s remarks as â€œa serious and substantive breach of protocol.â€Â Unlike Rep. Joe Wilson, who shouted â€œyou lieâ€ during a presidential address in September, Greenwald reasons, Alito is not a political actor, and his â€œpoliticizedâ€ actions seriously undermine the Courtâ€™s credibility.Â Dahlia Lithwick, writing for Double X, takes an opposing stance; in her view, both Obama and Alito are political actors and were therefore both justified in their actions during the speech.Â And at the New Yorker, Jeffrey Toobin argues that Alito, as a political adversary to the President, was justified in expressing his disappointment at Obamaâ€™s words.Â And at CNN, Toobin writes that Alito was right, at least insofar as Obamaâ€™s comments may have mischaracterized the Courtâ€™s decision: although the president asserted in his speech that the Citizens ruling effectively gives foreign companies the right to participate in U.S. elections, the Courtâ€™s decision actually took a narrower approach.Â (Erin also pointed this out in yesterdayâ€™s roundup on this blog.) At the New York Times Caucus Blog, David Kirkpatrick takes a similar approach to the incident, observing that the Courtâ€™s opinion, contrary to President Obamaâ€™s assertion, did not address the rights of foreign corporations.
The blogosphere, too, has remained focused on the flap over the State of the Union address.Â Jack Balkin, taking a historical approach on Balkinization, observes that Obamaâ€™s decision to take the Court to task was nothing new; in 1937, for example, President Roosevelt devoted approximately one quarter of his address to criticism of the Supreme Courtâ€™s stance on the New Deal.Â The BLT, however, points out â€“ as several news sources did â€“ that Alitoâ€™s comment was probably in reference to the presidentâ€™s debatable contention that the Court overturned a century-old law in its ruling.
President Obama isnâ€™t the only politician publicly criticizing the Courtâ€™s Citizens United opinion.Â The blogosphere reported yesterday that Democratic Senator Patrick Leahy of Vermont, has condemned the ruling as the Courtâ€™s most partisan since 2000â€™s Bush v. Gore, calling it even â€œbroader and more damaging in that [the Justices] have now decided to intervene in all elections.â€Â Susan Crabtree, writing for The Hill, analyzes Leahyâ€™s comparison between the two cases, while The BLT quotes Leahy as saying that the decision â€œshows no respect for the rule of law.â€
Also covering the potential impact of the Citizens United decision today, the Washington Post and National Public Radio report on the anticipated follow-up by Democrats in Congress, while an L.A. Times opinion piece posits that the sweeping influence of the decision has likely been overblown.
Despite the overwhelming focus on the Citizens debate, another case did make news today as well.Â The AmLaw Daily reports that the law firm Reed Smith has taken the unusual step of filing an amicus brief in its own name, urging the Supreme Court to grant certiorari to review an appellate decision that could limit attorney-client privilege.Â The First Circuit ruling stipulates that the IRS can examine documents in which attorneys and companies discuss the legality of tax-related transactions.
At the National Law Journal, Tony Mauro reports on a recent panel addressing the presence of female advocates on the Supreme Court Bar.Â Sandra Day O’Connor, the first female Supreme Court Justice, and Elena Kagan, the first female Solicitor General, both spoke on the panel, and both observed that women still face unique hurdles when being confirmed for office.
Finally, the Wall Street Journalâ€™s Jess Bravin recaps a recent interview with Justice John Paul Stevens about former Illinois senator Charles Percy, whom Stevens credits with helping him shape his career as a judge.Â The interview was part of a program about Mr. Percy, in whose name a new research grant has just been endowed at the University of California Berkeley.