PRESIDENTIAL COMMENTARY ON SUPREME COURT DECISIONS

As Pres. Barack Obama made his State of the Union address to a Joint Session of Congress last Wednesday with some members of the Court seated front and center, Associate Justice Samuel Alito was seen, and commented on, to shake his head negatively and mouth the words, "Not true," as reported in the press, in reference to the Citizens United decision the week before which accorded corporations more free, meaning expensive, speech than they'd been accustomed to for the past century of limitations on corporations buying representatives, hence government.

I don't know the significance of the C.U. case as the reactions are just now brewing in the form of new legislation designed to curtail what some think abusive lobbying and politicking by wealthy interests.  But the presidential critique of the case and the head-shaking reaction by the justice brought to mind a previous instance where a president addressed the significance of a case in the presence of a member of the Court.

The occasion was the First Inaugural Address of Pres. Abraham Lincoln in 1860, the oath of office having been administered by Chief Justice Roger B. Taney, author of the Dred Scott decision (1857) which helped crystallize the polarized North and South popular opinions regarding slavery, hastening the advent of the war, according to various commentators.  Lincoln was faced with incipient secession and was trying to apply reason in the face of emotion.  Here's what he said about Dred Scott, a suit between private parties in which, I believe, the government did not participate.  I don't know this for a fact, but I assume that the function of today's Solicitory-General's Office was not then exercised in some fashion:

"... I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government.

And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could  the evils of a different practice.

At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes...."

Perhaps Chief Justice Taney shook his head negatively at Lincoln's undercutting of the pro-slavery, anti-human rights holdings of the case and its purported legal authority as binding on the nation and thought to himself words similar to "Not so."  I say purported because a great constitutional lawyer, A. Lincoln, had just denied its authority, saying that to do otherwise would be to have the people cease to be their own rulers.  I defer to Lincoln.

Part of the deal of being a justice of the Supreme Court is that one doesn't always know at the time of decision the effect it will have, how it will be taken, or its lasting significance.  Seeing the decision characterized, or mischaracterized, differently than one may have intended, goes with the territory.  Libraries have been written on Dred Scott.  The Feherenbach volume alone is more than 800 pages, briefing one case, if you will.

The Santa Clara Railway Case, when was that, 1887 or so? recognizing w/o argument but taking it for granted that corporations had the constitutional rights of humans seems to have contributed to the foundation of Citizens United.

Roe v. Wade (1973) is a more modern example of a case that perhaps didn't seem out of the ordinary when decided, yet in its own way has resulted in a kind of civil war with abortion protesters murdering abortion performing doctors and then seeking to excuse the crime on the basis of genuine belief, the Roeder case decided this week in Kansas against that proposition being the latest example.

The point is that we're free to characterize the import of cases as we see them, rightly or wrongly, exaggeratedly or not, and that includes presidents, justices, other politicians, partisans, and members of the public.  Cases are like paintings or any other artifact.

Beauty is in the eye of the beholder.

Perhaps you see it differently and can advise who is, or will turn out to be right, Alito or Obama.  Or Associate Justice Anthony M. Kennedy who seems to have figured he was dealing more with free speech than corporations and political law.

rs

I was pleased to see a "nice post!" re this, from one of the distinguished historians and law professors on the Conlawprofs listserv, P.F.