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Alito objected to Obama's history claim

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MARK SHERMAN | February 6, 2010 07:50 AM EST | AP

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WASHINGTON — Still wonder exactly why Justice Samuel Alito shook his head and mouthed the words "not true" during President Barack Obama's State of the Union address? He objected to the president's saying the ruling reversed a century of law.

The president touched off a controversy when he broke with tradition – and decorum, his critics said – by criticizing the court's recent campaign finance decision in his speech with six justices in attendance and bound by their own tradition of not reacting to what is said. (Justice Antonin Scalia once said he no longer goes to the annual speech because the justices "sit there like bumps on a log" in an otherwise highly partisan atmosphere.)

"With all due deference to the separation of powers," Obama said, "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."

It seems clear from Alito's questioning when the court heard argument in the case that he was taking issue with the president's assertion that the court reversed 100 years of law, rather than with Obama's reference to foreign influence, which also has generated some legal debate.

At the September argument, Alito suggested to attorney Seth Waxman that 20 years was the appropriate time frame, encompassing two high court decisions that upheld limits on corporate spending in campaigns.

"Mr. Waxman, all of this talk about 100 years and 50 years is perplexing," Alito said then. "It sounds like the sort of sound bites that you hear on TV. The fact of the matter is that the only cases that are being, that may possibly be reconsidered, are McConnell and Austin. And they don't go back 50 years, and they don't go back 100 years."

In the end, the court left untouched a 1907 law that bans contributions by corporations to candidates. But in overruling those two decisions, the court did strike down limits on corporations in a law that had been in place since 1947.

News organizations attempting to convey the sweep of the ruling without ignoring these distinctions said the court's opinion represented a sharp turn away from the a century-long trend toward greater regulation of corporate contributions.


In William Rehnquist's days as chief justice, it took more than the threat of snow – heck, it took more than a blizzard – to close the Supreme Court.

With the possibility of more than two feet of snow in the forecast, Chief Justice John Roberts announced the building would close at midday Friday, allowing employees to make their way home before the brunt of the storm hit the Washington area.

That is arguably a sensible choice, but Rehnquist, chief justice from 1986 until his death in 2005, surely would have chuckled at his successor's decision.

In 1996, while the rest of the federal government closed following a two-foot snowfall and then again later the same week because of a smaller storm, Rehnquist's court remained open.

To be fair to Roberts, Rehnquist had a thing about storms. He was a weather observer for the Army Air Forces during World War II and he took great pleasure in wagering on how much snow would fall on the court plaza. Rehnquist and his law clerks would take a measuring stick outside to find out the winner.

When that second snow fell on Washington in 1996, Supreme Court police drove Rehnquist to work, but Justice Sandra Day O'Connor drove her own car.

Employees were told to report to work if they could, but were allowed to take a vacation day if they could not make it. Most employees – including seven justices – decided to stay home.


The Supreme Court is in the middle of its annual winter recess that lasts nearly four weeks. As they do each year, some justices are on the move.

Roberts and Justices Stephen Breyer and Ruth Bader Ginsburg are traveling to Luxembourg next week for meetings with their counterparts at the European Court of Justice.

The private meetings are part of an ongoing exchange involving the top judges in Europe and the United States. Breyer also was supposed to be a judge at a poetry competition in Paris on this trip.

Justice Anthony Kennedy was visiting his home state of California, while Justice Clarence Thomas stopped at law schools in Florida.


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