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Reactions split on Obama's remark, Alito's response at State of the Union
Barbara A. Perry, a Sweet Briar College professor who has written extensively about the court, said she was taken aback by Obama's frank criticism and Alito's response.
"I did think it was an unfortunate display for both branches," she said. "I'll leave the individuals aside."
But that is difficult to do. If it were up to Obama, Alito would not have even been on the court. As a senator, Obama led the fight against President George W. Bush's second nominee to the bench.
Alito was an accomplished jurist, Obama said at the time, "but when you look at his record -- when it comes to his understanding of the Constitution, I have found that in almost every case, he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American's individual rights."
Alito was confirmed by a vote of 58 to 42. He has since expressed unhappiness with the confirmation process.
He was a notable no-show when President-elect Obama and Vice President-elect Biden accepted Chief Justice John G. Roberts's invitation to pay a courtesy call on the court. Alito was the only member of the court not to attend the afternoon event, even though he had been at the court in the morning. He has not explained why he was absent.
On the bench, Alito is a serious and often unsmiling presence -- profiles done during his nomination describe him as perfectly suited for the sometimes solitary life of an appellate judge. As a member of a camera-averse court, it is unlikely he was thinking Wednesday night that his reaction was being captured.
The legal blogosphere was filled with scholars who supported Alito and his position in the majority of the 5 to 4 decision, and criticized the president as out of line.
"It was rude, an act of intimidation of one branch of government by another," said Randy E. Barnett, a professor at Georgetown Law Center. They charged that Obama mischaracterized the decision and was looking for a way around a constitutional ruling based on the First Amendment.
But Jack Balkin, a law professor at Yale, said the president's speech is a charge to Congress to do the things he considers vital to the nation. "The important thing to me is that the president thinks the Citizens United decision is important enough that he would include it," Balkin said.
On his blog, Balkin said if Barnett thought that devoting one paragraph of his speech to the Supreme Court was shocking, FDR's criticism of the court "would probably make his head explode."
Roosevelt was trying to change what he perceived as a recalcitrant court. But a database search shows other presidents around his time were specific in their references to court decisions. Presidents Dwight D. Eisenhower and Ronald Reagan each asked Congress for specific action in response to court decisions.