The President is wrong about the impact of the Citizens United Supreme Court decision – it is hard to imagine that it will unleash special interest groups, as if their role in our political process could get any worse.
But what was Justice Alito thinking when he shook his head and accused the President of misconstruing the Court opinion?
“Not true,” he mouthed visibly in response to the President as the Democrats sitting around him erupted in applause.
A judge, particularly a life tenured federal judge, knows that he sacrifices a certain amount of his right to freedom of speech when he is elevated to the bench. The place for Alito to express his opinion is in his written opinion, not during a state of the union speech by the President.
Ordinarily the Justices sit silently at the State of the Union as a visible symbol of the Court’s autonomy from the rough and tumble of American politics. That autonomy is fragile and yet is also the source of the legitimacy and power of our Supreme Court. Alito forgot that this evening and thus tore a small hole in that veil of legitimacy.
Perhaps it is time to dust off the requirement that a Justice serves for life only if he engages in “good behavior.”