From the Wall Street Journal By RANDY E. BARNETT
In his State of the Union address, the president of the United States called out the Supreme Court by name for sharp condemnation and egged on his congressional supporters to jeer its recent decision:
"Last week, the Supreme Court reversed a century of law to open the floodgates for special interests—including foreign corporations—to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that's why I'm urging Democrats and Republicans to pass a bill that helps to right this wrong."
Even before he finished, hundreds of Democratic senators, congressmen and cabinet officials surrounding the six seated justices stood, applauded and cheered.
Suppose for a moment that you were a justice seated there as the president of the United States singled you out for criticism and the room stood and cheered. Could they take it? Yes, of course. Should they have been put in this position? Absolutely not.
This is not to deny that the Supreme Court may be criticized. I do it regularly in class, op-eds, blog posts, and in the pages of law reviews. So too should the president when he thinks the Court is wrong. But not when the justices are in attendance as a courtesy to him, seated as a captive audience on national television, while surrounded by hundreds of his political partisans. Imagine the howls if the president had been a guest in the House of Commons when the British prime minister called him out for failing to live up to his promises in Copenhagen about imposing a carbon tax.
Judge not the words themselves, but their effect on the audience. The president fully expected that his hundreds of supporters in the legislative branch would stand and cheer, while the justices remained seated and silent, unable to respond even afterward. Moreover, the president's speech was only released about 30 minutes before the event, after the justices were already present. In short, the head of the executive branch ambushed six members of the judiciary, and called upon the legislative branch to deride them publicly. If you missed it, check the YouTube video. No one could reasonably believe in their heart that this was respectful behavior.
Then there is the substance of the remark itself. It was factually wrong. The Court's ruling in Citizens United concerned the right of labor unions and domestic corporations, including nonprofits, to express their views about candidates in media such as books, films and TV within 60 days of an election. In short, it concerned freedom of speech; in particular, an independent film critical of Hillary Clinton funded by a nonprofit corporation.
While the Court reversed a 1990 decision allowing such a ban, it left standing current restrictions on foreign nationals and "entities." Also untouched was a 100-year-old ban on domestic corporate contributions to political campaigns to which the president was presumably referring erroneously.
That is a whole lot to get wrong in 72 sanctimonious words. Clearly, this statement had not been vetted by the president's legal counsel. Solicitor General Elena Kagan, for example, would never have signed off on such a claim. Never.
Then there is the lack of any reference to the Constitution or First Amendment upon which the Court rested its decision. The president made a nakedly result-oriented criticism: Because interest groups and foreigners (gasp!) will allegedly get to influence our elections, the Supreme Court made a legal mistake. As though this is the way the Supreme Court should decide constitutional cases.
Oh, and how exactly is Congress supposed to override a constitutional ruling by the Supreme Court by enacting a statute? Or was the president merely urging Congress to evade it?
If the president, himself a Harvard Law School graduate, is going to criticize a judicial opinion, it is incumbent upon him to be legally accurate and responsible in his commentary. If that is too much to expect of a politician giving a nationally televised speech to the general public, then this again illustrates the inappropriateness of making this remark in this venue.
For those who strongly object to the ruling in Citizens United and still do not see the impropriety of criticizing the Court this way, consider Rep. Joe Wilson's "You lie!" outburst during the president's address to a joint session of Congress in September. No one denied the right of a congressman to criticize the accuracy of the president's remarks. The objection was to the rudeness and disrespect shown the president, for which Mr. Wilson promptly apologized. So too should the president.Mr. Barnett teaches constitutional law at Georgetown Law Center, and is author of "Restoring the Lost Constitution" (Princeton, 2005)