American Bar Association Journal: Alito Mouths an Objection During Obama’s Speech

JUSTICE SAMUEL ALITO AND GEORGE WALKER BUSH, who appointed him to SCOTUS

By Debra Cssens Weiss

President Obama used his State of the Union speech last night to criticize last week’s campaign finance ruling by the U.S. Supreme Court, producing what appeared to be a dissent from Justice Samuel A. Alito Jr.

The Washington Post's 44 blog calls the situation “a striking State of the Union moment.” Six justices sat directly in front of Obama. Five didn’t react, but Alito shook his head and appeared to mouth the words, “Not true, not true.” (44 has the video.)

Alito’s reaction is in contrast to justices’ usual demeanor, according to the New York Times Opinionator blog. “Supreme Court justices usually make for an awkward sight at the State of the Union speech, because they sit stony-faced and never clap or cheer,” the blog says.

Here is what Obama said that apparently provoked Alito: “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."

According to the Opinionator, Obama was imprecise when he spoke of striking down a century of law. The direct ban on direct corporate contributions to candidates, enacted early in the 20th century, was not before the court in Citizens United v. Federal Election Commission, although it has now been called into question. Instead the court struck down a more recent law that barred corporations and unions from spending money from their own treasuries on TV ads on behalf of candidates before elections.

PolitiFact of the St. Petersburg Times has also examined the 100-year-old talk, and determined that the statement "glosses over a lot of detail."

After Alito reacted, Obama then continued: "I don't think American elections should be bankrolled by America's most powerful interests or, worse, by foreign entities," he said. "They should be decided by the American people. And I urge Democrats and Republicans to pass a bill that helps correct some of these problems."

The Post points out a another problem with Obama's assertion. The Supreme Court said it did not have to address spending by foreign corporations in its Citizens United opinion, since the law at issue did not differentiate between foreign and U.S. corporations. Restrictions on foreign participation in U.S. elections remain on the books