03/31/2010 05:12 am ET | Updated May 25, 2011

Alito Mouthing Off

I agree with Glenn Greenwald that "the behavior of Justice Alito at [Wednesday] night's State of the Union address -- visibly shaking his head and mouthing the words 'not true' when Obama warned of the dangers of the Court's Citizens United ruling -- was a serious and substantive breach of protocol that reflects very poorly on Alito and only further undermines the credibility of the Court. It has nothing to do with etiquette and everything to do with the Court's ability to adhere to its intended function."

And this is why Supreme Court justices, if they can't control themselves, probably shouldn't attend these events.

More Greenwald -- essential reading:

There's a reason that Supreme Court Justices -- along with the Joint Chiefs of Staff -- never applaud or otherwise express any reaction at a State of the Union address. It's vital -- both as a matter of perception and reality -- that those institutions remain apolitical, separate and detached from partisan wars. The Court's pronouncements on (and resolutions of) the most inflammatory and passionate political disputes retain legitimacy only if they possess a credible claim to being objectively grounded in law and the Constitution, not political considerations. The Court's credibility in this regard has -- justifiably -- declined substantially over the past decade, beginning with Bush v. Gore (where 5 conservative Justices issued a ruling ensuring the election of a Republican President), followed by countless 5-4 decisions in which conservative Justices rule in a way that promotes GOP political beliefs, while the more "liberal" Justices do to the reverse (Citizens United is but the latest example). Beyond that, the endless, deceitful sloganeering by right-wing lawyers about "judicial restraint" and "activism" -- all while the judges they most revere cavalierly violate those "principles" over and over -- exacerbates that problem further (the unnecessarily broad scope of Citizens United is the latest example of that, too, and John "balls and strikes" Roberts may be the greatest hypocrite ever to sit on the Supreme Court). All of that is destroying the ability of the judicial branch to be perceived -- and to act -- as one of the few truly apolitical and objective institutions.

Justice Alito's flamboyantly insinuating himself into a pure political event, in a highly politicized manner, will only hasten that decline.

I'm not terribly enraged by what Alito did, I must admit, but of course his inappropriate mouthing off is part of a much larger problem:

What's most disturbing here is the increasing trend of right-wing Justices inserting themselves ever more aggressively into overtly political disputes in a way that seriously undermines their claims of apolitical objectivity.


It was clear from Sam Alito's confirmation hearing and his record of appellate opinions that he is a dogmatic, state-revering, right-wing judge. But last night, he unmasked himself as a politicized and intemperate Republican as well.

Now, it's not that we're all too "squeamish," as Jonathan Chait suggests. It's one thing for overt partisans like Joe Wilson to mouth off, quite another for a Supreme Court justice to do so (if inaudibly). We don't expect politicians to be neutral and objective, but we do expect the men and women who sit on the highest court in the land not to be outwardly partisan, that is, to express their partisanship in public. We may know that they are partisans, or at least that they have political views, but we want them to put their professional objectives first.

It hardly matters that Alito was right. Sort of. (Linda Greenhouse notes that while Obama's statement that the Court "reversed a century of law" in "open[ing] the floodgates for special interests -- including foreign companies -- to spend without limit in our elections" was incorrect, strictly speaking, "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.") The point is that Alito both should have known better and represents a disturbing trend in the conservative judiciary, the emergence, and dominance, of partisan right-wing activism in support of the Republican Party.

Inappropriate though it was, are we really at all surprised that Alito, or someone like him, mouthed off?

(Cross-posted from The Reaction.)