Glenn Greenwald thought the reaction to Congressman Joe Wilson's childish antics during President Obama's health care speech was overstated. Greenwald pointed out that the speech was political, and the reaction was political, from an opposition politician. Not that Wilson's behavior was okay, but that it wasn't as condemnable as some were making it out to be. So, Greenwald's reaction to Supreme Court Justice Samuel Alito, at last night's State of the Union Address, is all the more salient:
By contrast, the behavior of Justice Alito at last night's State of the Union address -- visibly shaking his head and mouthing the words "not true" when Obama warned of the dangers of the Court's Citizens United ruling -- was a serious and substantive breach of protocol that reflects very poorly on Alito and only further undermines the credibility of the Court. It has nothing to do with etiquette and everything to do with the Court's ability to adhere to its intended function,
Greenwald emphasizes the importance of the Court's remaining above the political fray, precisely because its rulings often have such profound political impact. And he makes the obvious reference to Bush v. Gore, which so damaged the Court's credibility, with the majority ruling outside what had been the tenor of its previous judicial philosophy. And Greenwald notes that the Citizens United ruling also undermines the purported conservative judicial philosophy, because its broad scope was a consummate example of the judicial activism conservatives, now exposed as patently dishonest, usually deplore. Greenwald bluntly states that Alito's behavior, last night, further undermines the Court's critical credibility.
On a night when both tradition and the Court's role dictate that he sit silent and inexpressive, he instead turned himself into a partisan sideshow -- a conservative Republican judge departing from protocol to openly criticize a Democratic President -- with Republicans predictably defending him and Democrats doing the opposite.
More explicitly:
Alito is now a political (rather than judicial) hero to Republicans and a political enemy of Democrats, which is exactly the role a Supreme Court Justice should not occupy.
Greenwald wonders at Alito's inability to comport himself as would most adults, at such an important public event. And he reminds us of the right wing's shrill doubts about Sonia Sotomayor's "judicial temperament."
Alito's conduct is the precise antithesis of what "judicial temperament" is supposed to produce.
But the real danger is this:
What's most disturbing here is the increasing trend of right-wing Justices inserting themselves ever more aggressively into overtly political disputes in a way that seriously undermines their claims of apolitical objectivity.
Scalia pallin' around with Cheney, then sitting and ruling during a lawsuit directly affecting Cheney's authority. Thomas playing up to right wing media, including Rush Limbaugh. And while it's no secret that Alito is a right wing ideologue:
But last night, he unmasked himself as a politicized and intemperate Republican as well.
And his every ruling, from now on, will be judged in that light.
Whatever impulses led him to behave that way last night, they have nothing to do with sober judicial reasoning or apolitical restraint.
As one commenter to Greenwald's post noted, Alito's reaction was deeply personal. As such, it revealed even more about the man, and I would say it revealed even more about the level of the irrational and extremist threat to the very constitutional foundation of our republic.
Update [2010-1-28 12:38:53 by Turkana]: At Talk Left, Big Tent Democrat takes strong issue with Greenwald:
This is absurd to me. The Justices act in ideological and political ways all the time. And doing so does not mean their actions are not "grounded in law and the Constitution." Instead it means it is grounded in their ideological and political views of what the law and the Constitution mean.
It has been my fundamental argument regarding the confirmation process that nominees should be required to discuss in depth their ideological and political views as applied to issues likely to be before the Court. Glenn and just about everyone else decries this approach, arguing for the need for the appearance of objectivity over the reality of knowing what nominees would do if they sat on the Court.
It is the forwarding of a fundamental falsehood - that Justices do not know how they will decide on certain issues until they hear the cases. This is, well, a lie.
A fair and valid point, but that such political honesty is not a part of the confirmation process. BTD is taking the long and large view, and he is right; but I obviously disagree with his disgust at the reaction to Alito. To my mind, spotlighting Alito and spotlighting the politics of the court actually can be a vehicle of movement towards the day when such political honesty about the judiciary can become possible. Had such honesty been part of the confirmation process in 2006, Alito might not now be sitting on the court.