Perhaps Justice Alito should just have stayed home. There's precedent, after all.
In January 1937, only a month before launching his plan to pack the Court, Franklin Roosevelt arrived in the House chamber to deliver the State of the Union address and found, to his surprise, that not a single justice had come to hear him speak. FDR suspected that someone had shown the nine men an advance copy of the speech--in part a lecture to the Court to stop blocking the New Deal--and that they had stayed away out of sheer spite. Disappointed, Roosevelt chided the Court anyway, accusing it of using the Constitution "as a device for prevention of action" instead of an "instrument of progress." But the justices' slight stayed on his mind. More than a week later, as he wrote a friend, he took some satisfaction in hearing that they had "at least read the remarks which pertained to them. I hope so!"
Last night, there was no question that Justice Alito heard the comments that President Obama directed at the Court. While Chief Justice Roberts and Justice Kennedy smiled benignly, Alito's curdled expression and whispered rebuke--"not true," which is a slightly muted way of saying, "you lie"--laid bare just what the Court's conservatives think of this president and his agenda. Alito's reaction was surprising in two respects: first, as countless commentators have pointed out, as a breach of protocol, and second, because the president's criticism of the Court was fairly mild. Mr. Obama issued no broad indictments of the Court as an institution and no attacks on the activism of its conservative members. Instead, he confined his comments to the possible effects of the Citizens United ruling, and promised to undo a small piece of it--the part that could allow "foreign corporations to spend without limit in our elections."
What should really concern us is not the words justices mutter under their breath but the words they commit to paper. Like Roberts' and Kennedy's smiles last night, the majority opinion in Citizens United presents a scrim of sweet reasonableness, but does little to disguise what lies beneath: a judicial haughtiness, bordering on contempt, toward the so-called political branches of government, a willful naïveté about the actual workings of democracy, and a rigid adherence to an ideological agenda. Whether the Court's five conservatives are smiling or scowling, they are failing to display a judicial temperament.