An Obama-Alito Observation I Haven't Seen Anyone Make

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A lot has been said about last week's flap over President Obama's scolding of the Supreme Court during the State of the Union. FDR was the last president who criticized a particular Supreme Court decision in a State of the Union speech. Justice Alito's mouthing the words "that's not true" in response have also been much-criticized, even by those who acknowledge that the justice was correct. I don't want to repeat everything that's been said, but I did notice something that I haven't seen anyone else picking up on.

Here is what President 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.

The most natural way to read that first sentence is that he's accusing the Supreme Court of doing this in order to give the special interests a chance to spend without limit. It's not just that it has that result but that such a result is the very reason they did it. He said they "reversed a century of law to open the floodgates for special interests". I don't know if he really meant to imply that the reasons they gave in the opinion are not their real reasons or if he was just uncareful in what he said, but what he said does seem to me to imply that they didn't really do it because they think the Constitution requires giving corporations and unions free speech rights that don't allow for these limits. Instead, it was because they wanted special interests in particular to have no limits.

That strikes me as a pretty uncharitable reading of their motives, especially given that this isn't all that surprising a decision for most of these justices. Justice Kennedy in particular is a free speech absolutist. He thinks hardly any limits on free speech are constitutionally allowable. Justices Thomas, Alito, and Scalia along with Chief Justice Roberts are more willing to allow exceptions for freedom of speech than Justice Kennedy is, but they've tended to oppose campaign finance restrictions on free speech grounds. The fact that some special interest groups will benefit from this is a mere effect. Accusing the Supreme Court of voting merely to get a political result can make sense if the argument they give in the opinion is extremely out of character for the kind of reasoning the justices in question usually give, but that's no so with this decision. It's extremely unlikely that this was motivated by some tie to special interests (as if special interests are only on one side of the aisle anyway; such a decision would go both ways, and given that Obama got more support from corporations than McCain it's also unlikely that this was motivated by a desire to get the Republican Party more money, as some conspiracy theorists have claimed).

But then this president, not very long ago, was a senator who made some pretty uncharitable comments to both Roberts and Alito when explaining his votes not to confirm them (and his vote to filibuster Alito). I'll quote one of my comments on a previous discussion:

I don't think what he said about Bush's Supreme Court nominees was all that respectful. He basically accused Roberts of having a callous heart toward the weak and being dismissive of attempts to eradicate discrimination. Then two paragraphs later he complained that Democrats were attacking Senator Leahy's motivations for supporting Roberts, as if it's bad to attack people's motives, something he'd just spent a couple paragraphs doing with Roberts.

He did something similar with Alito. He spoke about how civility is a good thing. He did say that Alito is a man of great character, which is at least better than how he treated Roberts. But then he went on to accuse him of siding with the strong, the state, and corporations in every case where he didn't have to follow Supreme Court precedent, as if it weren't about what he viewed the Constitution as requiring but were just about seeking to get certain results that favored the strong, the state, and corporations.

Of course, then-Senator Obama's arguments against then-Judge Alito applied just as strongly to then-Judge Sotomayor when President Obama nominated her to the Supreme Court. So he has a history of making charges about the assumed motivations of conservative judges but unwilling to hold his own nominations to the same standard.

It strikes me as disingenuous and extremely unfair to assume hidden motives when judges and justices actually give arguments for their decisions. It might also be unfair and uncharitable to assume a line like this one must mean he thought they were intentionally doing this to achieve the bad result he predicts will happen, but that is the most natural way to read the sentence he used (and I'm sure this speech underwent much effort to get it just right). I do hope this line in the speech wasn't intentional on his part, because I don't like the kind of partisan spirit that attributes bad motives to those who disagree. But I see exactly that kind of partisan spirit in President Obama's consistent stance toward judges who are to his right but well within the mainstream, and that inclines me to think he probably wouldn't change a line like that if someone pointed out to him that it seems to indicate that he's attributing bad motives to these judges.

I have a feeling that's exactly what he wants to convey, because it's a way of dirtying those he disagrees with without sounding as mean as he would if he just talked explicitly about bad motives. It's an effective way of motivating the base who agrees with him while flying under the radar of those who might miss the nuance of language, and in this case the fact that his fact-checkers allowed him to misrepresent the decision so badly led critics to focus entirely on the issues of fact, with some also criticizing him for his nearly-unprecedented move of criticizing a recent Supreme Court decision in a State of the Union. No one seems to have noticed the attribution of bad motives. My suspicion is that Justice Alito did, however, and I have to wonder if that's more what he was responding to than the misinterpretation of the decision that came after. From watching the video, assuming the audio is synced properly, I have to say that the timing of his response suggests so.


I hadn't noticed this before. I agree that it's surprising that it hasn't been commented on in the media, because it could easily be taken as implying corruption on the part of the Supreme Court, and if Alito took it that way, then I would be inclined to say that his response was perfectly understandable, and actually pretty moderate.

On the other hand, the Supreme Court decision did explicitly recognize that the organizations which are often called 'special interest groups' have a constitutional right to "spend without limit in our elections." In that sense, this was the majority's intention: to protect the right of a group of legal 'persons' to spend money on political speech. On this interpretation, it's just the normal level of 'spin' we expect in political speech, and not an implication of corruption.

This ambiguity could be either sloppy or intentional.

Even on the most charitable reading, though, I don't think it should be in a Democrat's interest to emphasize the part of this decision that was overturning a century-old decision, because that was the limit on unions, not the limit on corporations, which was much more recent. If this Supreme Court was being politically ideological in overturning that restriction, it wasn't because they're acting on a conservative ideology. So it's a very strange statement even on the most charitable reading.

I don't think that's the most natural reading of his remarks, actually. The "open the floodgates" idiom gives it away -- people usually employ that sort of language to describe ramifications, not intentions. The image suggests losing control of a situation, not executing a design.

But I have much better evidence than that. The advance text released by the White House does indeed say "to open the floodgates." But afterward, the White House released a transcript (complete with notations of laughter and applause); it reads "that I believe will open the floodgates."

I'm on a pretty bad Internet connection right now, so I'm not going to wait for the video to load to verify that the transcript is accurate. But I think it's pretty clear that you're looking at an earlier draft that was corrected in order to reflect more precisely what Obama was trying to communicate in the first place.

Ah, now I have the video. Here's my own transcript of that section of the speech (it starts at 46:22 on the CBS video):

"With all due deference to separation of powers, last week the Supreme Court reversed a century of law, that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections."

So the reason nobody's talking about this aspect of what Obama said is that Obama didn't say it.

Now, the revised text doesn't strictly make sense as English copy. It has Obama saying that the century of law is going to open floodgates, when he meant to say that "the Supreme Court reversed a century of law [in a decision] that I believe will open the floodgates." My guess is that Obama edited this on his feet as he was reading; in any case, the editing was done in a hurry. Fortunately for this conversation, however, the edit happened anyway.

So that's good. It seems he wanted to be careful in what he said. It also explains why I didn't notice it at first but did when I looked in the transcript and why no one else seems to have noticed it.

But if he knew it was worth changing, that suggests to me that I'm not alone in seeing the sentence that way, though, which means he didn't see it as innocently as you did.

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