While many have remarked upon the president’s unprecedented attack on the Supreme Court in last night’s speech –many presidents have attacked many courts and many decisions, just not in the context of a SOTU when the justices are obliged by custom to attend and by tradition never to comment on or react to the substance of the speech– very few have noted that the specific decision attacked, Citizens United, had its majority opinion authored by Justice Kennedy, the swing vote on the Court and the one, presumably, the president needs most in all of the cases that matter to him while the court’s makeup remains the same. It was shocking for a former Con Law professor to step over the unseen but very real lines of decorum that protect and help preserve separation of powers and the mutual respect between the branches that strengthens the Republic, but it also simply amazing that the political instincts of the president are so off center these days that he traded the fleeting thrill of an applause line or two for whatever the cost of an insult delivered to the key vote on the court.
The attack was also intellectually dishonest in that it ignored that the precedent overturned, Austin v. Michigan Chamber of Commerce, was a mere 20 years old, did not “reverse a century of law,” and as very carefully and clearly explained by Chief Justice Roberts in his concurring opinion, had never been directly challenged and reviewed in the subsequent two decades. The Chief Justice also pointed out –again, very carefully and very clearly– that the government was not urging that the reasoning of Austin be maintained and extended, but that new arguments for banning corporate speech be adopted, which are not arguments from precedent of the sort that command stare decisis deference in the first place.
It is fair for a president to argue with Justice Kennedy’s decision and with the Chief Justice’s concurrence. When he did so last week in his radio address it barely caused an eyebrow to rise.
But to do so in that setting, and with such casual disinformation about the nature of the decision ,was to overtly politicize the work of the Supreme Court. It is not something that many professors of constitutional law saw coming. In fact, if anyone can point me to any blog among the many by any law professor urging the president to do just what he did, or anything remotely like it, please send along the link.