I don’t care enough about SOTU protocol to have an opinion about whether President Obama owes Justice Alito an apology for disagreeing publicly with a Supreme Court decision or whether Justice Alito owes President Obama an apology for injudiciously shaking his head. But I’m intrigued by an assumption that people who agree that an apology is warranted seem to share, even while they disagree about who should apologize.
Here, for example, is Jennifer Rubin taking Obama to task:
And here’s Glenn Greenwald upbraiding Alito:“He conveys not merely a lack of respect for a co-equal branch of government (and ignorance about the ruling he was vilifying) but for the Constitution itself, which he is sworn to uphold. For a lawyer, his conduct is embarrassing; for a president, it is inexcusable.”
For all their differences, Rubin and Greenwald both presume that any hint of disagreement on a point of constitutional law between a president and a sitting Supreme Court justice in a political forum undermines the constitutional order. I don’t get it.“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 . . . . Justice Alito's flamboyantly insinuating himself into a pure political event, in a highly politicized manner, will only hasten that decline.”
For one thing, the judicial and political branches have overlapping jurisdiction when it comes to interpreting the Constitution. Presidents, congressmen and judges are all duty-bound to uphold constitutional provisions according to their best judgment about what they really mean. Constitutional interpretation in our system is better understood as an example of constitutional checks and balances than of the separation of powers. It’s a matter as to which the ambition of one co-equal branch of government is supposed to counteract the ambition of the others. If that's right, what’s so alarming about Obama’s publicly challenging a Supreme Court decision or Alito’s publicly sticking to his guns? If you ask me, they were both doing their constitutionally prescribed jobs.
Granted, it’s a fixed point of our constitutional politics that, as John Marshall declared in Marbury v. Madison, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” That implies that, whenever a duly constituted court acting within its jurisdiction pronounces on the meaning or the constitutionality of a legal rule, the other branches of government must abide by that decision as long as it remains in force. It doesn’t mean that elected public officials have to believe that the court’s decision is legally correct or to refrain from drawing attention to its mistakes. Any suggestion to that effect runs afoul of the laws of logic and basic structural features of our constitutional system.
Take the logical point first. Belief is involuntary; you either believe something or you don’t depending on whether you think you have sufficient grounds. As a matter of logic, then, you can't incur an obligation to believe that something is legally correct just because a court says it. So long as you think that belief is unwarranted on the merits, that would be an obligation to do something impossible. The most you could conceivably be obligated to do is keep your doubts about the rightness of a court’s decision to yourself.
Yet that’s something our constitutional system plainly doesn’t require the President, or anyone else, to do. It presents every citizen with a standing invitation openly to express, and to act on, the belief that a court has misinterpreted the law. It’s not just that we have a First Amendment right to state our objections to public decisions and seek redress of grievance from public decision-makers. The Constitution plainly affords every citizen the right to try to overturn even Supreme Court decisions, either by amending the Constitution or by electing presidents who will change the composition of the federal bench before the courts revisit a legal issue. A sitting president who already enjoys a democratic mandate to push the courts in a certain direction is just the person to take the lead.
As far as I can see, the tiff between Obama and Alito may have been a little tacky, but it was a perfectly legitimate exercise of constitutional politics. The idea that Obama's words or Alito's head shaking coarsened the tone of an otherwise dignified proceeding is merely funny.