Monday, February 1, 2010


In his nationally televised State Of The Union Address last week, the President of the United States, in what should be characterized as a shameful act of cowardice, publicly condemned a recent decision of the nation’s Supreme Court, six of whose members were seated in front of him on the front row on the floor of the House of Representatives. These justices, who rarely appear or speak at public events except in judicial settings, were only attending the State Of The Union Address as a courtesy to the President and were following a long tradition of displaying to the nation the solidarity of our three branches of government. Nevertheless, the President called out the justices, and his exact words were:

“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’m urging Democrats and Republicans to pass a bill the helps to right this wrong!”

Even before the President finished these remarks (which had been released to the media and to the Congress only a few minutes prior to his speech and after the justices had already arrived) hundreds of Democratic members of Congress, who were seated immediately behind and alongside the justices, stood and wildly cheered the President’s remarks, while the members of the High court sat quietly and endured the remarkable public display of abuse heaped upon them.

Randy E. Barnett, a constitutional law professor at the Georgetown Law Center, in his January 28, 2010, Wall Street Journal article (“Obama Owes the High Court an Apology”), accurately described the scene: “The President fully expected that his hundreds of supporters in the legislative branch would stand and cheer, while the justices remained seated and silent, unable to respond even afterward . . . . In short, the head of the executive branch ambushed six members of the judiciary, and called upon the legislative branch to deride them publicly.”

Not only was this presidential and legislative behavior disrespectful, but it was cowardly as well, because President Obama knew that members of the Supreme Court could not publicly defend themselves on that occasion and they can only comment on their decisions through their writings and in other judicial settings.

It is ironic that since the President’s address to Congress, his remarks have been shown to be factually wrong. Instead of reversing “a century of law”, the Court’s decision merely reversed a 1990 decision of the Court that prevented labor unions and domestic corporations, including non-profits, from publicly expressing in the media their views about candidates within 60 days of an election. In other words, the Court ruled that labor unions and corporations have the same First Amendment free speech rights as do individual citizens. Also, as stated by Mr. Barnett, instead of allowing American elections to be “bankrolled” by “foreign entities”, the Court actually left standing current restrictions on “foreign nationals and entities. Also untouched was a 100-year ban on domestic corporate contributions to political campaigns to which the President was presumably referring erroneously.”

Whether one agrees or disagrees with a ruling of the United States Supreme Court or any court, there is a proper time and place to voice that disagreement, and it is vitally important that our state and federal courts remain totally independent of the executive or legislative branches of government. It is also vitally important that the President of the United States show respect for the independent judicial branch of government and never attempt to intimidate or ridicule the justices where they are present and cannot respond, in a setting such as a state of the union address. Such a public display of presidential arrogance breeds and encourages disrespect for the nation’s highest court, which was created by the founders as a part of our governmental system of checks and balances against unbridled presidential power.

We, here in Mississippi, have recently seen the results of a climate where wealthy attorneys lost respect for the judicial system and naturally concluded that they could intimidate, buy or improperly influence certain judges to their own advantage. (See the recently published book “Kings of Tort”, which is a chronicle of the abuse of the state’s judicial system). We have learned the hard way that prolonged and wide disrespect for the judicial system inevitably leads to the abuse and corruption of that system.

It was remarkable to me that on the night of the State of the Union Address, the only criticism of the President’s shabby treatment of the Supreme Court that I heard from the television commentators came from Juan Williams of Fox News and National Public Radio. He voiced concern that a sitting President would publicly attempt to intimidate another branch of government in such a fashion.

Other commentators focused instead on Justice Alito, who, while remaining silent and not knowing the cameras were on him during the President’s remarks, accurately and in apparent frustration mouthed the words “not true.” As stated by Professor Barnett in his article,

“For those who strongly object to the ruling in Citizens United and still do not see the impropriety of criticizing the Court this way, consider Rep. Joe Wilson’s ‘You lie!’ outburst during the president’s address to a joint session of Congress in September. 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, for which Mr. Wilson promptly apologized. So too should the president.”

I agree, and still wonder: where was the outrage that should have instantly erupted when the President publicly and cowardly attacked the justices in such a fashion. Is Juan Williams the only public commentator, public official, or member of the media who recognized the dangerous nature of the President’s actions on that night? I hope not.

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