Alito's "You Lie" Moment

Randy E. Barnett, writing at the Wall Street Journal, takes the President to task: Obama Owes the High Court an Apology

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.
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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.
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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.
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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.