Justice Samuel Alito Objects To President Obama’s Supreme Court Criticism

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The most surprising moment in the House Chamber Tuesday night came not from House Minority Leader John Boehner’s frequent gesticulation, but from the subtle exchange between Supreme Court Justice Samuel Alito and President Obama.

It started when Obama offered a surprisingly blunt criticism of the Supreme Court’s recent ruling that corporate and union money should be allowed to influence elections.

With all due deference to separation of powers, last week, the Supreme Court 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.

The Supreme Court gets a front row seat at these events, and Samuel Alito, the second most junior justice, did not look pleased with Obama’s criticism. He shook his head twice, and appeared to mouth the words, “Not true.” John Aravosis, at Americablog, points to a video of the exchange.


Aravosis calls Alito’s behavior highly inappropriate, saying the court is “not supposed to respond to anything, lest it show bias.” Via Twitter, Glenn Greenwald claims with typical panache that “Justice Alito breached protocol in a more serious way than Joe Wilson did.” I don’t believe the hype.

It’s one thing for a justice to take public sides on a political issue–which would be surprising, and problematic if the issue later came before them in court. It’s another thing altogether for a justice to disagree with a criticism of his own published legal reasoning. That seems pretty fair game. After all, we pay judges to concoct and defend their legal reasoning. Plus, the justices, which form an independent branch of government, have a lot of leeway to do whatever they please. That’s the whole point of their independence.

Nor is it true that members of the Supreme Court sit stone-faced through these events. They just tend not to applaud the political lines, much like the Joint Chiefs of Staff. Alito and the other justices were applauding heartily when Obama entered the chamber, for instance. No harm there. Ruth Bader Ginsburg gave Obama a full-on hug, as they exchanged pleasantries.

The more interesting point raised by Alito’s subtle exchange with Obama is a substantive one. Is what Obama said really not true? Was Alito objecting to the “century of law” claim, or to the “floodgates” claim? I don’t know enough about the case to answer that question, and since it is 1 a.m., I am going to sleep. But I can’t wait to find out tomorrow.

UPDATE: In the clear light of day, it seems that Alito had a point. See here for an explanation of the justice’s turn as a presidential fact checker.