Leave Alito Alone
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You would think, reading this morning’s SOTU coverage, that Justice Samuel Alito stood up last night, ripped off his robe, and howled like a werewolf when President Obama criticized the Supreme Court's Citizens United ruling. Please. What probably happened—what inevitably happens to the one collective of American public officials who are completely shielded from public view—is that Alito was offended at the Obama’s high sticking, muttered “not true” under his breath, and failed to realize that it would turn it into the gotcha moment of the night.
There was absolutely nothing wrong with the president’s criticism of the court’s decision, although as Linda Greenhouse points out, he was less than precise in his description of the holding. But there was also absolutely nothing inappropriate about the justice’s reaction to him. Both the president and the justices are political actors, and all are entitled to screw up their faces and grumble in public as they see fit. Anyone who’s watched Alito at oral argument at the high court knows that he screws up his face and mutters to himself all the time. The suggestion that he was showboating or grandstanding last night is spectacularly unfair. Unlike several of his colleagues, Alito is meticulously polite, balanced, and measured on the bench, and goes out of his way to shun big drama. I’m sure if Alito could take it back this morning he would. I’m equally sure that if he attends the next SOTU at all, he won’t move so much as a muscle.
Photograph of Samuel Alito and Barack Obama by Alex Wong/Getty Images.
Dahlia Lithwick Slate contributor, mom, wife, currently drinking coffee
Comments
No, Ms. Lithwick
By: Ankhorite | Fri, 01/29/2010 - 18:22
Ms. Lithwick: "Both the president and the justices are political actors, and all are entitled to screw up their faces and grumble in public as they see fit."
No, the judges are not entitled to make public displays of their opinions except in the Court itself, and in the Court's opinions.
This is something they give up when they become judges (much less justices) and they know it. Displays of partiality or contention in public are totally out of line. Whether Alito did it on purpose or unconsciously is not pertinent. If Justice Alito can't control himself in public, then he'd best not go to public events at which his control is likely to be tested.
I'm a member of the Supreme Court bar, but you can ask any competent attorney about this issue and get the same answer: judges outside the courtroom are absolutely not supposed to show favor, prejudice, or contempt to any position on any issue which might conceivably some day come before them.
Alito is not alone in falling short of this standard, but he certainly has made himself the most conspicuous offender.
Off Base
By: BOOMTOWN | Fri, 01/29/2010 - 13:43
I agree that this attempt to defend Alito is off base. He should be judged as a judge and a member of the legal profession, not as a politician. Way back in moot court in law school we were all taught to maintain a poker face and not to do things like mutter under our breaths or even shake our heads sadly to signal our view of how off base our opponents' arguments were. I am an appellate attorney and the same standard holds at this level.
This was totally inappropriate behavior for a judge - the capacity in which he was attending the SOTU -, and should be recognized as such, especially by people as savvy as I otherwise find Ms. Lithwick to be.
Incorrect
By: kram | Fri, 01/29/2010 - 09:29
You miss the point. The issue is not that he was "showboating" -- exactly the opposite. What appeared was a spontaneous emotional reaction.
Roberts famously said judges are umpires, calling balls and strikes. Alito's reaction was not one of an umpire calling a ball or strike, but someone who is emotionally invested in an outcome. That is the issue.
It is time to start discussing activist conservative judges and not the lazy themes that get propelled by the media....
I'm not mad at Alito.
By: Punditus Maximus | Thu, 01/28/2010 - 14:38
He's simply fully expressing the worldview of the post-Bush-v-Gore court.
Roberts OTOH...
By: Caerolle | Thu, 01/28/2010 - 14:32
Roberts I more see as splitting his skin open and having a big lizard standing there...
oh, and relative to a response I saw from a rightwinger concerning the indignation over the Citicens United ruling, yes, in fact I *do* see it likely that Roberts and Thomas eat babies for breakfast...
the funniest thing i have heard in a while!
By: Caerolle | Thu, 01/28/2010 - 14:28
"You would think, reading this morning’s SOTU coverage, that Justice Samuel Alito stood up last night, ripped off his robe, and howled like a werewolf when President Obama criticized the Supreme Court's Citizens United ruling."
i have passed this along on Twitter and FB, too funny! :)
part of the problem
By: CMV | Thu, 01/28/2010 - 13:29
This is symptomatic of something that's holding Dems (by which I mean anyone not hell-bent on total obstruction of government) back -- though this piece is sane, ethical, and smart, and DL is one of the journalists I respect most in the entire world, I think this is an example of how supporters of Obama's agenda shoot ourselves in the foot in the public discourse by playing too nice with the other side.
CAN YOU IMAGINE the stink that would have been made of a liberal Justice shaking her/his head at a line in a Bush SOTU criticizing some progressive opinion they had written, calling it a "liberal activist" decision or something??! (a reaction which might have been even more justified, since given the Presidents' respective intelligence levels and rhetorical skills, the criticism would likely not have been as earnest or pointed -- or accurate -- a critique as Obama leveled here...)
But CAN YOU IMAGINE? Cable news programs would be drumming up popular outrage for his/her impeachment, calling him/her seditious, insubordinate, unpatriotic, radical, dangerous, extremist, etc. etc. It wouldn't have mattered how measured or mild the reaction was, or how crazy the decision or how justified the criticism. I'm not saying that this "gotcha" politics is a good thing, or that we should play it as dirty as they do. But I do actually think we have to stop defending and making excuses for them for actions which, coming from a liberal, would be played into massive popular discourses demonizing and de-legitimizing us.
If the tables were turned, the mainstream media would be promulgating the new "common sense" view that Justice So-and-so is a blatant, unrepentant extremist and everything he says is rendered illegitimate, or at least suspect, because he's so blinded by his radical ideology, which is so completely opposed to what most Americans believe and want, and so out of step with precedent as to be bankrupt. In light of that, and in light of how egregious this decision is, I don't actually think there's anything wrong with using Alito's reaction as a teachable moment to try get Americans to see what this opinion in fact says, what Alito actually believes, and how pervasive and long-ranging the consequences are of having Republicans in power.
Judges are politicians
By: phpeter | Thu, 01/28/2010 - 13:18
How did they get to the Judicial system in the first place? Law school buddy, best friends wife, active in local bar etc...These are not merit positions and to pretend so is inaccurate.
Alito muttered "not true" probably because what Obama said wasn't accurate. Funny how nobody is discussing Polosi tap dancing behind the Pres all night long, especially when he reference his spending freeze EXCEPT for Defense, SS and MC...she was grinding her teeth and talking with Biden as if it was the back of the movie theatre...
Political actors?
By: K_Allen | Thu, 01/28/2010 - 12:34
How can you possibly claim they are political actors? They are appointed for life precisely because we want them to be somewhat insulated from politics (as much as is possible). They aren't elected officials, they do not represent anyone's interests. They swear to uphold the Constitution, period, and they should dispassionately and objectively declare "what the law is," to quote Marbury. I will agree, as will most sensible people, that politics influences the Court. We all know why the Court did so little to enforce Brown v. Board -- because there was no political will for the next decade. But that doesn't mean that the Court is, at its core, a political institution, or that the justices are political actors. And they certainly are not political actors in the sense that the President and members of Congress are.
I disagree
By: cj | Thu, 01/28/2010 - 12:23
Of course, in the realm of legal realism, Alito, like the Court, is a "political actor." However, it is vital that neither outwardly appear to be so. His conduct was inexcusable on that ground alone. It demeans the institution greatly.