Making History by Shaming SCOTUS? (TWICE UPDATED)

I know I’ve never seen anything like that happen in a SOTU and if anything like that has ever happened before in a SOTU or a joint session, I must have been hung over the day of the lecture in college. Even the fireside chat in which FDR unveiled his court packing scheme, as dripping with patrician condescension and barely concealed venom as it was, didn’t go second person and directly in their face the way Obama did tonight.

The Supremes are used to wafting into the House in their black robes, sitting dispassionately through the speech and wafting ethereally out again on a cloud of apolitical rectitude. It’s like they forget they’re there because they’re one of the three branches. And I truly don’t think it ever occured to them that crassly injecting themselves into the sordid partisan fray of what they like to call “the political branches” with that catastrophic decision would cause the President to treat them like people who’d injected themselves into the sordid partisan fray. (And why should they? After all, they got away with Bush v. Gore with barely a dent in their credibility). I even thought I detected a bit of “told you” coming from the four in the minority.

I think we saw a bit of history made tonight, and no one noticed except the Supremes themselves.

Obama seemed genuinely conflicted about this moment; if you compare his spoken remarks to the prepared text you’ll see he seemed to be softening his attack on the fly. I was remarking to someone over GChat earlier tonight that part of the problem with Obama seems to be, perhaps, his genuine respect for the separation of powers; beyond the mere politics of cover he seems to actually want Congress to do its own work in drafting legislation. It’s a problem, and hurting him badly, because Congressional Democrats have no brains. (A case study in how virtue becomes vice.)

But here, then, is one answer to that criticism, in its own way arguably a vice: Obama is also the politician who finally stopped pretending the five-justice majority that gave us Bush v. Gore and now Citizens United v. FEC is nonpartisan, apolitical, or “above the fray.” It’s been clear for years that this SCOTUS majority is every bit as activist as the “liberal judges” it decries. Indeed, with Citizens United, we see it’s probably more.

UPDATE: Media Matters, in response to a Drudge five-alarm whine over this, says it’s not that rare after all. Contra MM, the moment is somewhat singular. Citizens United was a specific decision, made just last week; Reagan’s criticism of decade-old Roe v. Wade and Bush’s complaints about anonymous activist judges don’t quite measure up.

UPDATE 2: Of course, many are pointing to Alito’s visible response to Obama as evidence of the criticism I make of the politicized contemporary Court above, as well noting that this too is a breach of protocol. Here’s Greenwald:

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.