It’s hard to remember a moment in a State of the Union speech quite like the one that heard President Obama last night denounce the Supreme Court of the United States for its decision in that allowed the broadcast close to election day of a film attacking Hillary Clinton. It was a relatively short moment in a long speech, coming about two thirds of the way into it, but there was the president of America, standing just a few feet in front and somewhat above, the seated justices of the Supreme Court, and launching into a direct attack on the their honors.
The moment came right after the president called for restrictions on the right of lobbyists to petition the government. Then he turned to the election spending case called Citizen’s United v. Federal Election Commssion.
“With all due deference to separation of powers,” the president began. He then proceeded to score the Supreme Court for having, as he put it, “reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.” He went on as follows: “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.”
At some point in there, those on the Democratic side of the aisle rose to their feet and gave the president an ovation. The judges sat stoically; some, like Justice Ginsburg, could be glimpsed glancing down. She was a dissenter in Citizen’s United. But she’s a great lover of the court on which she sits. What must she and the other justices have been thinking as Americans watched the spectacle of the majority party of the United States Congress crowded around them and cheering on the president who’d just denounced them — not only for standing up for the First Amendment rights of Americans but also for complaining that these rights might be extended to foreigners within our midst.
Here is a president who was lofted to high office on a campaign that, among other things, would extend the most basic rights vouchsafed in our constitution to foreigners accused of terrorism. And yet who denounces the Supreme Court to its face, while they are seated respectfully before him and while his party comrades leap to their feet and cheer him on, for holding, en passant, that the rights of free speech might be exercised by foreigners here as well as the rest of us. All in all, it was a bizarre, even shameful moment. And a mistake.
The reason we have a state of the union speech in the first place is that the president is required by the Constitution the president is sworn to preserve, protect and defend to make such a report, either in writing or in person, to the Congress. But the Constitution does not require the Justices of the Supreme Court to attend the state of union speech. And after watching the performance last night, it wouldn’t be in the least out of order if the members of the court chose not to attend the next speech. Why would they want to subject themselves to being denounced to their face while surrounded congressmen cheering their denouncer. The justices can stand up for the rights of Americans and the foreigners among us in the dignity of their court — with, as the president put it, “all due deference to the separation of powers.”