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Reactions split on Obama's remark, Alito's response at State of the Union

By Robert Barnes
Washington Post Staff Writer
Friday, January 29, 2010; A01

President Obama called out the Supreme Court. Justice Samuel A. Alito Jr. winced at the accusation and muttered, "Not true." And then official Washington and the legal community went to the tape, and examined it frame by frame.

What they saw -- either a president gratuitously criticizing the silent black-robed justices sitting in front of him or a conservative jurist injudiciously reacting to a man who had voted against his confirmation -- depended on from where they started.

"Rude," Sen. Orrin G. Hatch (R-Utah) said of the president. "Inappropriate" was the verdict on Alito from Sen. Russell Feingold (D-Wis.).

And legal experts said they had never seen anything quite like it, a rare and unvarnished showdown between two political branches during what is usually the careful choreography of the State of the Union address.

"I can't ever recall a president taking a swipe at the Supreme Court like that," said Lucas A. Powe Jr., a Supreme Court expert at the University of Texas law school. The closest precedent most could find was President Franklin D. Roosevelt's criticism of the court in his 1937 address to Congress.

Roll Wednesday night's tape.

Obama was near the end of his speech when he turned his attention to the court's decision last week in Citizens United v. Federal Election Commission. The ruling overturned two precedents and left corporations free to use their profits to support or oppose political candidates.

"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," Obama said.

"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 I urge Democrats and Republicans to pass a bill that helps correct some of these problems."

Democratic lawmakers and Obama Cabinet members, surrounding the six of nine justices who turned out for the event, stood and applauded.

The justices, in the front and second rows of the House chamber, sat motionless and expressionless. Except for Alito.

"Not true, not true," he appeared to say (other lip readers think he said, "That's not true") as he shook his head and furrowed his brow. It is unclear what part of Obama's statement he was objecting to, although he started shaking his head after the president said "special interests."

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.

But such criticism has been minimal under recent presidents, and Obama's criticism was particularly pointed, coming less than a week after the court's decision.

White House deputy press secretary Bill Burton shrugged off the controversy. "One of the great things about our democracy is that powerful members of the government at high levels can disagree in public and in private. This is one of those cases," he said.

Alito, once more out of public view, declined through a court spokeswoman Thursday to talk about the event, even to clarify what he said.

Others wondered what it meant for future relations. The court's attendance at the State of the Union address often seems forced; because justices do not want to seem partial to initiatives that might one day come before them, they usually sit silently among partisans who cheer or jeer.

This may call into question the tradition, said Texas professor Powe. "I do not expect to see justices at the next State of the Union address," he said.

Staff researcher Madonna Lebling contributed to this report.

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