SOTU: Anatomy of a "Slam" That Wasn't

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SOTU Supreme Court-Alex Wong.jpg

Several Washington-insider journalists were agog last night at the notion that the President of the United States would deign to "slam," "take on," or "scold" the Justices of the Supreme Court for their charged ruling last week on campaign finance reform. It's a great angle--if only it were backed by the facts.

"Extaordinary," wrote Jan Crawford, my colleague and successor at CBS News. She labeled the President's remarks "a fiery attack on the Court." The Washington Post's Robert Barnes was a little more sublime. Like Crawford, he focused upon the reaction of Justice Samuel A. Alito, Jr. to the President's remarks. Justice Alito, Barnes reported, appeared "to mouth the words 'not true'" after Obama had made his remarks. "It proved to be a striking State of the Union moment," Barnes wrote. Even the normally conscientious Tony Mauro, an excellent Supreme Court reporter, bought into the controversy angle. "Pointed criticism," he called Obama's remarks. My friend Jake Tapper called it a "harsh rebuke."

I read the State of the Union speech just before it was delivered. And then I watched the speech itself as it was delivered. If the President's remarks about the Supreme Court were "fiery" or "pointed," "harsh" or an "assault," then those words no longer have meaning. Here, judge for yourself.

Here is the advance text of the remarks the President delivered: "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'd urge Democrats and Republicans to pass a bill that corrects some of these problems."

Here is what the President actually said Wednesday night. "With all due deference to separation of powers, 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'd urge Democrats and Republicans to pass a bill that corrects some of these problems."

Now tell me, dear readers, in any of the above paragraphs where exactly do you find the extraordinary criticism? Did the Supreme Court last week not reverse a century of law (and two controlling precedents) to open floodgates to campaign spending from unions and corporations, foreign and domestic? (Good comments on this point below, including good ones about limitations to the scope of the ruling) Was that not the clear purpose and effect of the ruling? Does the President not have the right like any other American to comment upon the Court's work? Do State of the Union addresses necessarily require clarity of position and purpose? Do the Justices have some sort of immunity from criticism or comment--to their faces or otherwise?

Compare the President's remarks offered last night live with the remarks he made last week just after Citizens United was issued. Here is what the President said then: "With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington--while undermining the influence of average Americans who make small contributions to support their preferred candidates. That's why I am instructing my Administration to get to work immediately with Congress on this issue. We are going to talk with bipartisan Congressional leaders to develop a forceful response to this decision. The public interest requires nothing less."

Now, that's a slam. By this measure, Obama was positively polite while speaking in the House Chamber last night. We all know that he (and about 150 million other Americans) loathe what the Supreme Court's conservative wrought in its ruling. To his credit, and contrary to the breathless reports, the President actually pulled his punches. And yet evidently the President's mere mention of the ruling sparked some in the chattering class to declare a full-scale inside-the-Beltway smackdown. Is the "legal world' so sensitive that it sees mountains where molehills exist?

Who do the Justices think they are? Better put, who do the reporters who cover the Justices think the Justices are? If a President of the United States cannot say what President Obama said last night about the Supreme Court's campaign finance ruling, then the third branch of government, the least accountable branch of government, is even less accountable than we've been thinking for the past 200 years. I think it's absolutely great and a breath of fresh air that the six Justices--not all of whom bought into the majority's ruling, by the way--had to sit there in that chamber and listen to the President's remarks on the topic. And if Justice Alito did, indeed, mouth off to the President then good for him. At least he showed a pulse--unlike the rest of his colleagues.  

What happened here is clear to see. Some of my colleagues conflated the mere mention of the Supreme Court's controversial ruling with a "fiery" attack upon it. But logic doesn't work that way. In the context of his speech, in the context of his plea to have Washington calm itself down and get some work done, the President had to mention the campaign finance ruling, which sets the country sailing on the opposite tack. In his speech, President Obama did not call for a reversal of Citizens United through a constitutional amendment or otherwise. He did not call for the removal of any Justices. He did not blast anyone by name. He merely recited the ruling's premise and then urged legislators to work on getting around its mandate. When did politics become beanbag again? 

Yes, it's unusual for a president to talk about the Supreme Court during a State of the Union address. But it's not unprecedented. What five Justices did last week was to dramatically transform the dynamic between politics and money--and not in a good way. The least they could have done was to sit there on Capitol Hill last night and listen to the loud, sustained applause against their ruling ring in their ears.

Photo credit: Alex Wong/Getty Images

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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