Obama and SCOTUS

President Obama's comment about Citizens United v. FEC in his State of the Union Address was way out of line: its was completely unprofessional, at least disingenuous — if not a lie — and directed toward a national audience that could not possibly appreciate the subtleties of the Court's decision.

First, as Georgetown professor Randy Barnett notes, "[n]o one could reasonably believe in their heart that this was respectful behavior." Surely, as Barnett says, "[t]his is not to deny that the Supreme Court may be criticized. . . . But not when the justices are in attendance as a courtesy to him, seated as a captive audience on national television, while surrounded by hundreds of his political partisans." His comment was unprofessional, and as Barnett notes later in his piece, comparable to Rep. Joe Wilson's "You lie!" outburst a few months back: "No one denied the right of a congressman to criticize the accuracy of the president's remarks. The objection was to the rudeness and disrespect shown the president." Obama's criticism of the Supreme Court is analogous to the South Carolina congressman's disrespectful cry.

Second, as Barnett also notes, Obama's claim was patently untrue. Normally, I might be inclined to give him the benefit of the doubt: maybe he misread the opinion. But here, I cannot: President Obama is a Harvard Law graduate and a former "Senior Lecturer" on Constitutional Law at Chicago. The legal question addressed in Citizens United was enormous. Yet, as Barnett writes,

. . . the substance of [Obama's] remark itself . . . . was factually wrong. The Court's ruling in Citizens United concerned the right of labor unions and domestic corporations, including nonprofits, to express their views about candidates in media such as books, films and TV within 60 days of an election. In short, it concerned freedom of speech; in particular, an independent film critical of Hillary Clinton funded by a nonprofit corporation. While the Court reversed a 1990 decision allowing such a ban, it left standing current restrictions on foreign nationals and "entities." Also untouched was a 100-year-old ban on domestic corporate contributions to political campaigns to which the president was presumably referring erroneously.

How could Obama not recognize this plain truth? Thus, what else could his error be but a lie?

Finally, Obama's comments were purely for political gain, because he directed them at a national audience that could not possibly understand the subtleties of the Court's Citizens United decision. Any law student will tell you that before actually reading cases and analyzing judicial reasoning (and even after a brutal 1st semester workload!), it is very difficult to parse a judicial opinion to determine its meaning. President Obama must have that ability (I hope, for Harvard's sake), but the TV audience he spoke to does not. Obama misled the average viewer by distorting the Court's reasoning to score political points with a populist appeal.

I can only "hope" that the "change" America wanted in the 2008 election was not blatant disrespect for the judicial branch and the separation of powers provided for by our Constitution — that separation of powers which, by the way, he flippantly cast aside to begin his commentary.