Some legal scholars have since charged that Obama, a former president (i.e., editor) of the Harvard Law Review, had his facts wrong, but that hasn’t lessened the criticism of Justice Samuel Alito, who, as the president spoke, broke protocol by shaking his head and mouthing the words, “That’s not true.”
Perhaps the most jarring moment was when Democrats — among them, delighted-looking Sens. Charles Schumer (N.Y.) and Dick Durbin (Ill.) and Cabinet members Attorney General Eric Holder and Treasury Secretary Timothy Geithner — jumped to their feet, lustily applauding and cheering their president’s rebuke of the court almost in the ears of the justices. As representatives of the independent third branch of government, the justices remained, with the exception of Alito, stone-faced — and that included Justice Anthony M. Kennedy, the swing vote for and the author of the majority opinion in Citizens United v. Federal Election Commission.
One can only wonder what would have occurred had Antonin Scalia, who deservedly has the reputation as the most feisty of the conservative bloc, been present.
It’ll be interesting to see who attends the SOTU in 2011. Obama may find attendance by the Supremes much reduced; it’s not unusual for only a couple of justices to attend; and he may find that those who do venture out on a winter night tend to agree with him.
It’s not as if those pesky 5-4 decisions are likely to change. Obama will probably have one seat to fill: liberal Justice John Paul Stevens, 89, who has reportedly not hired a full quota of clerks and whose speech was stumbling as he read his dissent in the opinion Obama was criticizing.
Another liberal, Justice Ginsburg, 76, who has announced no plans to retire but who has had a couple of bouts with cancer and did not look well Wednesday night, might be the next to retire — or not. In a recent speech Ginsburg, who managed chemotherapy and radiation for colon cancer without missing a single day at the court, told Columbia Law students that Justice Louis D. Brandeis "became a justice at age 60, as I did. He remained on the bench until age 83. My hope and expectation is to hold my office at least that long."