Legal Commentary

False Appearances

By Big Tent Democrat

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

Full post as published by TalkLeft on January 28, 2010 (boomark / email).