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By Jay Cost

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Obama Versus Alito

What to make of the mini-controversy arising over Justice Alito's apparent "not true" retort to Obama's comment about the Court during the State of the Union address? I have a few thoughts.

The political context is important. The Supreme Court is the weakest branch in our system. There are a few reasons for that.

(1) The Supreme Court is the only court created by the Constitution. The rest are the creation of Congress. The Congress also posseses the power to regulate the Supreme Court's appellate jurisdiction.

(2) The Judicial Branch is the only one that lacks a kind of republican legitimacy. It's purely appointive. That matters in a society where all power flows from the people. To appreciate the implications of this, think of how powerful a President is when he is new in office. This is thanks in large part to the fact that he was just elected, i.e. the people have recently spoken. There's a freshness that he possesses. But after a few years when the public mood changes, yet he's still in office because of that old election, his mandate seems a little stale. The Court is perpetually in an extreme version of the latter case, never having to stand before the people.

(3) The Judicial Branch lacks the power to enforce its rulings. At least on a federal level, it requires the President to execute its rulings, and it requires the Congress to foot the bill. Historically, this has hindered its capacity to make policy. As Andrew Jackson once famously said, "Mr. Marshall has made his ruling. Now let him enforce it!"

The political weakness of the Court leaves me thinking that both Obama and Alito behaved inappropriately. My attitude is that it's like the big kid picking on the little kid in the schoolyard. The big kid should leave the little kid alone. Should the big one decide to take on the weakling, anyway - the little kid should just keep his mouth shut because there's nothing he can do about it.

First, Obama. Granted that he disagrees with the Court's decision, and this disagreement stems from legitimate differences of opinion, the fact remains that it is a good thing for the country that the Supreme Court is so well-regarded. Obama of all people should know this. He talked about the "trust deficit" the country has in its public institutions. There is no trust deficit as regards the Supreme Court. People trust it!

Yet this good reputation is not a guarantee. It could be damaged; indeed, considering the Court's dependence on Congress and the President, as well as its separation from the people and its inability to see its pronouncements through to their intended effect, its public standing is quite vulnerable.

Thus, I think it was inappropriate for the President to take a shot at the Court in the way he did. The Court's solid reputation is a public good for the country, and it should not be tampered with, especially over a case such as the one in question. It seems to me that if the Court had rendered a judgment that was truly beyond the pale - akin to Dred Scott - I wouldn't mind if the President took a shot at the Court. But on a campaign finance ruling? That strikes me as irresponsible and short-sighted on the part of a President who wants people to trust their government. It becomes even more irresponsible when one recalls that he blasted the Court right to its face. That particular level of disrespect sends a message that is not conducive to keeping the Court's good reputation intact.

Second, Alito. I'm sure he regrets what was an impetuous response. Obama should not have been so critical because the Court's reputation is important yet fragile. For the same reason, Alito should have kept his counsel. Obama has a republican legitimacy that Alito lacks - and it is politically not smart for a Supreme Court justice to disagree openly with an elected official such as Obama. This is the political equivalent of David going up against Goliath, and this time there is no guarantee that the Lord is on the side of the little guy! Politically, it would be advisable for the whole Court to show up at the next State of the Union address, to listen attentively without any reaction, and to make sure that this mini controversy becomes nothing more than a footnote in the annals of history.

Now, to be clear, I don't think that this whole dust-up is going to affect the Court's reputation. Still, these are the kinds of actions that could affect the Court, especially if they happen again. From my perspective, the best way to secure the good reputation of the Court is for it never to happen even once. So, shame on Obama for picking on the Court, and shame on Alito for not just taking it in stride. Both of them should have recognized that the Court's reputation is tremendously more important than the particular case in question.

Altogether, I'm much more troubled by Obama's comment than Alito's response because Obama is so much more powerful than Alito. I wish the President would appreciate the effect his words can have, and the possible negative consequences that come from attacking the Court in such pointed language (and right to its face!). It is a very positive thing that the Court has a good public reputation. It's due in part to the hard, smart work of many people who have served on the Court over the decades, but it also depends upon the Congress and the President allowing it to remain outside the political battlefield. The Supreme Court is not the Republican House caucus. It should be left alone, unless of course it clearly behaves inappropriately, which it obviously has not in this case.

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-Jay Cost