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Justice Alito’s Reaction—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on January 27, 2010.

Justice Alito’s Reaction
By Linda Greenhouse ’78 MSL

There was the president, and there were six members of the Supreme Court. The few words from the one to the others went by quickly. The president’s tone was mild compared to the animation in some other parts of the speech, and I thought he looked momentarily awkward. But maybe I was just projecting.

Mr. Obama’s words were sharp, echoing his earlier criticism of the court’s decision last week in the Citizens United case to strike down the limits that the McCain-Feingold campaign finance law placed on independent political expenditures by corporations and unions. The decision would “open the floodgates for special interests — including foreign companies — to spend without limit in our elections,” Mr. Obama said, adding that “I don’t think American elections should be bankrolled by America’s most powerful interests.” He urged Congress to “pass a bill that helps correct some of these problems.”

Nearly every president finds something to criticize about the Supreme Court, but not every one gets to do it to the justices’ faces, on national television, in the State of the Union speech. Of the six justices in the audience, three were in the majority in the 5-4 decision: Justice Anthony M. Kennedy, who wrote the opinion; Chief Justice John G. Roberts Jr.; and Justice Samuel A. Alito Jr. Three were among the four dissenters: Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor.

Supreme Court justices usually make for an awkward sight at the State of the Union speech, because they sit stony-faced and never clap or cheer.

Some members of the court dislike the exercise so much that they never attend. Justice Sotomayor’s predecessor, David H. Souter, never did. For several years, Justice Breyer attended alone.

This time, Justice Alito shook his head as if to rebut the president’s characterization of the Citizens United decision, and seemed to mouth the words “not true.” Indeed, Mr. Obama’s description of the holding of the case was imprecise. He said the court had “reversed a century of law.”

The law that Congress enacted in the populist days of the early 20th century prohibited direct corporate contributions to political campaigns. That law was not at issue in the Citizens United case, and is still on the books. Rather, the court struck down a more complicated statute that barred corporations and unions from spending money directly from their treasuries — as opposed to their political action committees — on television advertising to urge a vote for or against a federal candidate in the period immediately before the election. It is true, though, that the majority wrote so broadly about corporate free speech rights as to call into question other limitations as well — although not necessarily the existing ban on direct contributions.

But this was a populist night and the target was irresistible. There are a variety of specific proposals floating around to address the Citizens United decision. The president offered no specifics and did not endorse any of them. Just as the decision doesn’t lend itself to a sound bite, neither do the fixes.