Friday round-up

By Anna Christensen
on Jan 29, 2010 at 10:54 am

President Obama’s criticism of the Supreme Court’s recent Citizens United decision in Wednesday’s State of the Union address dominated the headlines yesterday and today.  A number of news outlets commented yesterday on Justice Alito’s immediate reaction to the criticism.  Reuters reports on the incident, quoting SCOTUSblog’s own Tom Goldstein, while at CBS News, Jan Crawford posits that Obama’s direct attack on the Court suggests that he might try to stretch the Citizens United debate into the confirmation process if Justice Stevens retires this year.   ABC News quotes University of Texas law professor Lucas Powe, who speculates that the Justices will likely opt not to attend the State of the Union address next year, while Robert Barnes, writing for the Washington Post, points out that each Justice chooses whether to attend the State of the Union address each year (this year, Justices Stevens, Scalia, and Thomas all skipped the speech).  And Georgetown law professor Randy Barnett suggests, in this Wall Street Journal opinion piece, that because the Justices attend the address as a courtesy to the President, Obama may owe them an apology.  In the New Republic, Jonathan Chait notes that the Citizens ruling and President Obama’s response may signal the beginning of a deeper division between the Court and the legislative and executive branches.

In addition, the debate has already begun over the appropriateness of both President Obama’s words and Justice Alito’s response.  Ashby Jones, writing for the WSJ Law Blog, excerpts opinions voiced by other commentators, all of whom seemed to agree that – regardless whether it was appropriate – Obama’s direct criticism of the Court’s decision was unprecedented in State of the Union history.  (Adam Liptak echoes this theme in the New York Times, noting that although presidents have often publicly criticized the Court, they have rarely done it during a State of the Union address.)  At Politico, Andy Barr reports that Republican Senator Orrin Hatch has denounced Obama’s criticism as “rude,” but Manu Raju notes in a second article in Politico that Democratic Senator Russ Feingold was just as quick to characterize Justice Alito’s reaction as “inappropriate.”  The Atlantic Monthly’s Andrew Cohen argues that the public shock over President Obama’s remarks is overblown.  The President “had to mention” the Citizens United ruling in his speech, Cohen reasons, and his attack on the decision should not necessarily be characterized as “fiery.”  The Los Angeles Times and the Wall Street Journal (here and here) also have coverage of the dispute.

At Salon.com, Glenn Greenwald characterizes Justice Alito’s visible response to Wednesday’s remarks as “a serious and substantive breach of protocol.”  Unlike Rep. Joe Wilson, who shouted “you lie” during a presidential address in September, Greenwald reasons, Alito is not a political actor, and his “politicized” actions seriously undermine the Court’s credibility.  Dahlia Lithwick, writing for Double X, takes an opposing stance; in her view, both Obama and Alito are political actors and were therefore both justified in their actions during the speech.  And at the New Yorker, Jeffrey Toobin argues that Alito, as a political adversary to the President, was justified in expressing his disappointment at Obama’s words.  And at CNN, Toobin writes that Alito was right, at least insofar as Obama’s comments may have mischaracterized the Court’s decision: although the president asserted in his speech that the Citizens ruling effectively gives foreign companies the right to participate in U.S. elections, the Court’s decision actually took a narrower approach.  (Erin also pointed this out in yesterday’s roundup on this blog.) At the New York Times Caucus Blog, David Kirkpatrick takes a similar approach to the incident, observing that the Court’s opinion, contrary to President Obama’s assertion, did not address the rights of foreign corporations.

The blogosphere, too, has remained focused on the flap over the State of the Union address.  Jack Balkin, taking a historical approach on Balkinization, observes that Obama’s decision to take the Court to task was nothing new; in 1937, for example, President Roosevelt devoted approximately one quarter of his address to criticism of the Supreme Court’s stance on the New Deal.  The BLT, however, points out – as several news sources did – that Alito’s comment was probably in reference to the president’s debatable contention that the Court overturned a century-old law in its ruling.

President Obama isn’t the only politician publicly criticizing the Court’s Citizens United opinion.  The blogosphere reported yesterday that Democratic Senator Patrick Leahy of Vermont, has condemned the ruling as the Court’s most partisan since 2000’s Bush v. Gore, calling it even “broader and more damaging in that [the Justices] have now decided to intervene in all elections.”  Susan Crabtree, writing for The Hill, analyzes Leahy’s comparison between the two cases, while The BLT quotes Leahy as saying that the decision “shows no respect for the rule of law.”

Also covering the potential impact of the Citizens United decision today, the Washington Post and National Public Radio report on the anticipated follow-up by Democrats in Congress, while an L.A. Times opinion piece posits that the sweeping influence of the decision has likely been overblown.

Despite the overwhelming focus on the Citizens debate, another case did make news today as well.  The AmLaw Daily reports that the law firm Reed Smith has taken the unusual step of filing an amicus brief in its own name, urging the Supreme Court to grant certiorari to review an appellate decision that could limit attorney-client privilege.  The First Circuit ruling stipulates that the IRS can examine documents in which attorneys and companies discuss the legality of tax-related transactions.

At the National Law Journal, Tony Mauro reports on a recent panel addressing the presence of female advocates on the Supreme Court Bar.  Sandra Day O’Connor, the first female Supreme Court Justice, and Elena Kagan, the first female Solicitor General, both spoke on the panel, and both observed that women still face unique hurdles when being confirmed for office.

Finally, the Wall Street Journal’s Jess Bravin recaps a recent interview with Justice John Paul Stevens about former Illinois senator Charles Percy, whom Stevens credits with helping him shape his career as a judge.  The interview was part of a program about Mr. Percy, in whose name a new research grant has just been endowed at the University of California Berkeley.