Supreme Court Historian: After President’s “Insult,” Won’t Be Surprised If Supreme Court Doesn’t Attend Next Year’s State of the Union Address

Historians in the News

A noted Supreme Court historian who “enthusiastically” voted for President Obama in November 2008 today called President Obama’s criticism of the Supreme Court in his State of the Union address last night “really unusual” and said he wouldn’t be surprised if no Supreme Court Justices attend the speech next year.

“It was really unusual in my mind to see the president going after the Supreme Court in such a forum,” said author and Law Professor Lucas Powe, the Anne Green Regents Chair in Law, and a Professor of Government at the University of Texas-Austin School of Law. “I’m willing to bet a lot of money there will be no Supreme Court justice at the next State of the Union speech.”

Added Professor Powe, who clerked for Supreme Court Justice William Douglas, “you don’t go to be insulted. I can’t see the Justices wanting to be there and be insulted by the president.” His opinion has nothing to do with animus towards the President, for whom Powe said he voted enthusiastically....

President Obama took the apparently unprecedented step of assailing a Supreme Court decision in his speech last night, saying, “with all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well 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 that's why I'd urge Democrats and Republicans to pass a bill that corrects some of these problems."...

The way the president deviated from the prepared text indicated he may have tried to soften his remarks as he made them. He added “with all due deference to separation of powers” and replaced his desire that Democrats and Republicans “pass a bill that helps to right this wrong” with one for lawmakers to “pass a bill that helps to correct some of these problems."

Listening to the speech Justice Samuel Alito could be seen mouthing the words “that’s not true.”

“I think Alito’s correct,” Powe told ABC News. “They weren’t overthrowing 100 years’ worth of history. They were overthrowing 20 years’ worth.”

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Walter D. Kamphoefner - 2/4/2010

Some may think it presumptuous or unprecedented for President Obama to criticize a Supreme Court decision, but in fact he is in very good company. Consider the words of former congressman and future president Abraham Lincoln in 1858: “But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this.” Lincoln was true to his word, and the decision did not stand. The present Supreme Court, making a total mockery of the alleged Republican principle of judicial restraint, rendered a decision on corporate political contributions that is the Dred Scott decision of the 21st century, similar in its unnecessary broadness, political motivation, and above all in ignoring nearly a century of Republican and Democratic precedent. Teddy Roosevelt must be turning over in his grave. To consider corporations as legal persons with all the rights and privileges of real persons has always struck me as a highly dubious proposition. Does that mean that if a corporation kills someone, it can get the death penalty in Texas? Soon there will be no petrochemical corporations operating in the state! Citizens United v. Federal Election Commission is a pernicious decision that needs to be combated with every legal means possible: above all, requiring full and immediate contribution disclosure, requiring majority stockholder (or union member) consent for any contribution made, and above all requiring CEOs to take personal responsibility for any ads their corporation runs the way politicians are required to.

Cary Fraser - 2/3/2010

A Judge with a lifetime sinecure will be subject to criticism and if he/she finds it unacceptable to be criticised, he/she should resign. Justice is too imporrtant to be surrendered to people who suffer from an excess of self-regard.

Thomas R. Cox - 2/3/2010

Good grief, to disagree with someone or some group is not to insult them. How else are we to have dialogue? The purpose of the State of the Union address is to evaluate where we are and where we ought to go; in the President's eyes Congress should pass some new legislation to prevent undue corporate influence over our election process, a perfectly appropriate thing to propose in a State of the Union message. . . and remember, the Court itself was divided on its ruling 5-4, so Professor Powe's stark division between the executive and the court is misleading, if not disingenuous. If Justice Alioto or others were "insulted" they either are unduly thin-skinned or have a Messiah complex.