FIRST ONE @ ONE FIRST

SOTU: POTUS v. SCOTUS

Posted in Justicespotting by Mike Sacks on January 27, 2010

Present at tonight’s State of the Union address: Chief Justice Roberts and Justices Kennedy, Alito, Ginsburg, Breyer, and Sotomayor–who put on her neck doily for the occasion.

But the big news belongs to Justice Alito’s reaction to the President’s taking the Court to task for Citizens United. Here’s what Obama said:

Last week, 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. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.

Moments after I took this photo, Justice Alito shook his head and mouthedNo, that’s not true,” becoming the only non-impassive face in among the robed.  Watch here at 48:35.

NYT’s The Caucus blog agreed with Alito:

But in his majority opinion in the case, Citizens United vs. the Federal Election Commission, Justice Anthony Kennedy specifically wrote that the opinion did not address the question of foreign companies. “We need not reach the question of whether the government has a compelling interesting in preventing foreign individuals or associations from influencing our Nation’s political process,” he wrote. The court held that the First Amendment protected the right of American corporations to spend money on independent political commercials for or against candidates. Some analysts or observers have warned that the principle could open the door to foreign corporations as well.

Here’s more from Politifact.com.  So let’s not be so fast to call this Alito’s “Joe Wilson Moment.”  Last year Wilson had no proof to shout that Obama lied.  Even if Alito broke from the justices’ traditional SOTU decorum, he certainly knows what Kennedy’s majority entailed and what it didn’t, however it may have been characterized by Stevens in his dissent.

For the Justices’ actual words on foreign companies’ contributions, see Kennedy’s opinion at pp. 46-47 and Stevens’s dissent at pp. 33-34.

UPDATE: Alito’s break with decorum made it to Wikipedia for a split second (h/t Scott Hechinger, NYU 3L):

During Barack Obama’s January 27, 2010 State of The Union Address, Justice Alito can be seen shaking his head in the negative and uttering the words “That’s Not True.”

Also, Ben Smith at Politico has the stand-alone scene.

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