I must candidly admit that I fell asleep during President Obama’s SOTU speech last night, so I didn’t witness, in real time, the President calling out the Supreme Court on its recent campaign finance ruling. However, I’ve seen tapes of the President’s remarks (and Justice Alito’s reaction ) and I think the President acted improperly.
Perhaps the Supreme Court shouldn’t even attend the SOTU speech. The Court is a non-political entity; when the Justices attend they sit there in their robes, listening respectfully but not applauding, a kind of living and stolid embodiment of the third branch of government. I can’t remember a State of the Union speech where the President has ever directly challenged a Supreme Court decision. Calling out the Court as the President did — knowing that the Court will make no response — is like a bully tormenting a kid in a wheelchair. It is not particularly brave to taunt someone who can’t possibly respond. For that reason, the President’s comments in that regard seemed like cheap political theatrics, and a bit presumptuous.
The Supreme Court is a limited, careful institution. It decides actual controversies and often elects not to accept cases that have overt political elements. The Court would never presume to reach out and issue an advisory opinion about, say, whether a statute that exempted Nebraska from ever paying for increased in Medicaid costs passes constitutional muster. The Supreme Court has tried, and for the most part succeeded, in staying within its constitutional role. The President should respect that role. Last night, President Obama unfortunately failed to do so. I wouldn’t blame our Supreme Court Justices if they skipped the SOTU from now on.