Yesterday morning, I tweeted a link to a blogpost here on the Supreme Court.
Has a president ever before so specifically criticized a Supreme Court decision in a SOTU? We answer at FrumForum.
That tweet triggered a real-time debate (I’m told the kids call it a “twebate”) between me and Glenn Greenwald. As a convenience to readers, we present here a tidied up transcript of the debate, with the first entry at the top.
* * * *
davidfrum
What Obama said about court http://bit.ly/bBli5Y is LITERALLY unprecedented.
davidfrum
Truman said not a word against steel seizure in SOTU, FDR mum on Schechter Poultry, A Johnson no complaints against Ex Parte Milligan.
ggreenwald
Jack Balkin: Roughly 25% of FDR’s 1937 SOTU was devoted to criticizing the Supreme Court: http://is.gd/7fnLt
dg22727
@davidfrum RT @ggreenwald Roughly 25% of FDR’s 1937 SOTU was devoted to criticizing the Supreme Court http://is.gd/7fnLt
ggreenwald
A reminder of what a “lie” in the SOTU address actually looks like: http://is.gd/7fBWH
davidfrum
@dg22727 FDR spoke in generalities, did not refer to any particular case – much less do so in terms so misleading as those used by Obama’s.
dg22727
@davidfrum quoting from that Balkin link “The statute of N.R.A. [the National Recovery Act] has been outlawed [by the U.S. Supreme Court].”
dg22727
@davidfrum that sounds like a particular case to me
dg22727
@davidfrum here ’tis, again, if you want to see http://balkin.blogspot.com/2010/01/bad-mr-obama-was-very-very-mean-to-poor.html
davidfrum
@dg22727 1) FDR didn’t say that the Schechter poultry case was wrong, indeed he himself joined in the criticism of the overturned law.
davidfrum
@dg22727 2) He did not express a disagreement with the result of the case, only noted that the stricken law had addressed real problems
dg22727
@davidfrum Of course you can make distinctions I just don’t buy that Obama drastically overstepped some bound of decency
davidfrum
@dg22727 It’s a HUGE departure from precedent for a president to attack a specific decision
davidfrum
@dg22727 and to do do so in the immediate aftermath of the case (FDR’s words in 1937 were delivered some 18 months afterward)
dg22727
@davidfrum I doubt Hughes, C.J., was all that tickled with FDR’s speech nonetheless
davidfrum
@dg22727 and incidentallly to do so in such a demagoguic and dishonest way.
dg22727
@davidfrum OK if that’s the gist (precedent): so what? SCOTUS members participate in political theater at their own risk
davidfrum
@dg22727 ps – I dont see how you get to the 25% figure. Even on most generous definition, I cant get to 20%
dg22727
@davidfrum I didn’t do that math, it was RT of Balkin post via @ggreenwald – was just curious about your reaction, given disparate accounts
dg22727
@davidfrum and for that matter, am gratified to have received reaction, even if I still don’t get the big deal about it
dg22727
@davidfrum last, I’d commend to you at least part of Ed Whelan’s reactions today http://bit.ly/d47WUf (see para. #1)
davidfrum
@dg22727 if Balkin were good at math, he’d have gone to med school.
dg22727
@davidfrum ha. I’ll leave that debate to you and him 
ggreenwald
@davidfrum FDR explicitly cited the Preamble, Art. I and the Constitutional Convention to argue the Supreme Court was wrong
ggreenwald
RT @davidfrum “demagoguic and dishonest”// Good one! If there’s one thing you hate, it’s a demagoguic/dishonest SOTU: Saddam’s anthrax
davidfrum
@ggreenwald 1) find me the quote where FDR says or even implies Schechter was wrongly decided.
davidfrum
@ggreenwald 2) pls note that this was the curtain raiser for FDR’s courtpacking plan.
davidfrum
@ggreenwald Yet even on eve of most aggressive attack on judicial independence in US history, FDR observed inhibitions that Obama discarded.
davidfrum
@ggreenwald FDR championed a more liberal approach to judging in general. A perfectly reasonable thing for a president to say IMO.
davidfrum
@ggreenwald FDR could be very harsh on courts. http://bit.ly/b10pi1 Yet even he recognized: there’s a time & a place.
russskinner
@davidfrum Just eavesdropping here, but can u find previous example of SCOTUS ignoring 100 years of precedents?Going out of way to overturn?
russskinner
@davidfrum Were situation reversed, I suspect you would be railing against activist judges, not President speaking truth to “impartial umps”
ggreenwald
@davidfrum FDR: “It is worth our while to read and reread the preamble of the Constitution, & Article I”- whom do you think he’s addressing?
ggreenwald
@davidfrum Here’s a hint: “We do not ask the Courts to call non-existent powers into being, but we have a right to expect . . .” about 13 hours ago from web in reply to davidfrum
ggreenwald
@davidfrum FDR (con’t) “that conceded powers or those legitimately implied shall be made effective instruments for the common good.”
ggreenwald
@davidfrum The whole passage is FDR’s lecture to the Supreme Court for having mis-read (in his view) the Constitution and legislative powers
ggreenwald
@davidfrum FDR accused the Court, with those opinions, of “imperiling” the “process of democracy” – how gauche!!
davidfrum
@ggreenwald Let’s hypothetically suppose you were right
davidfrum
@ggreenwald And that those veiled words, so much less explicit than Obama’s, contained a criticism as specific as Obama’s.
davidfrum
@ggreenwald Given that FDR was on verge of proposing to pack court – and that indeed those words were mean to justify the packing –
davidfrum
@ggreenwald Cheerful precedent or sinister?
davidfrum
@ggreenwald It’s as if I said, “No president since James Buchanan has so neglected the national defense.”
davidfrum
@ggreenwald And you rebutted: “No – James Buchanan neglected the national defense JUST AS MUCH.”
davidfrum
@ggreenwald Sorry typo. Penultimate tweet should have read “No president in history ” etc. But you get idea.
ggreenwald
@davidfrum (1) It proves it’s not unprecedented; (2) Reagan criticized the Court in 1988 for banning school prayer; and . . . .
ggreenwald
@davidfrum (3) what’s Obama’s “sinister” motive? The Constitution requires he tell Congress of problems they need to address — he did.
davidfrum
@ggreenwald I didn’t say Obama had a sinister motive. He probably was engaged in base management. But the so-called precedent is sinister.
davidfrum
@ggreenwald And back to basics, the precedent is not a precedent. FDR’s language was highly abstract, his reference non-specific.
ggreenwald
@davidfrum Also, what’s so sacrosanct about the SOTU? Many presidents (most?) have harshly criticized Court decisions.
ggreenwald
@davidfrum Did you read Reagan’s 1988 SOTU? He rather directly criticized the Court’s school prayer jurisprudence.
davidfrum
@ggreenwald And no Reagan did not criticize school prayer decision of 25 yrs before. He urged Congress to pass a school prayer amendment.
davidfrum
@ggreenwald. As a lawyer, you surely recognize distinction between disliking a case’s result
davidfrum
@ggreenwald And claiming it was wrongly decided.
ggreenwald
@davidfrum RR: “The Congress opens its proceedings each day, as does the Supreme Court, with an acknowledgment of the Supreme Being.”
ggreenwald
@davidfrum “Yet we are denied the right to set aside in our schools a moment each day for those who wish to pray.”
ggreenwald
@davidfrum Reagan said “we are denied THE RIGHT” to pray in schools by the Court – that’s a criticism of the Court’s ruling, by definition
ggreenwald
@davidfrum You’re reduced to parsing semantics – that illustrates how weak is the case that Obama did something “unprecedented” or so gauche
davidfrum
@ggreenwald. Not at all. Here are the words I wrote that triggered this whole tweet chain…. http://bit.ly/bBli5Y about
davidfrum
@ggreenwald “Had any president before ever denounced the Supreme Court to their own faces in the way that Barack Obama just did?
davidfrum
@ggreenwald “I have not yet looked through them all, but a first scan can find no precedent.
davidfrum
@ggreenwald “Even Franklin Roosevelt in 1937, on the eve of pushing his court-packing plan, was more circumspect.” There followed FDR quote.
davidfrum
This exchange confirms everything I said. RR raised a judicial decision from a quarter century ago and called for a remedy to correct it.
davidfrum
@ggreenwald And even FDR – a BAD example – was more circumspect than Obama.
davidfrum
@ggreenwald. BTW I’m not accusing Obama of sinister motive.
ggreenwald
@davidfrum You were cautious – but even if it’s true that Obama’s criticism was marginally more direct, I honestly don’t see the sin.
davidfrum
@ggreenwald. More likely he was engaged in base-management.
davidfrum
@ggreenwald. But he should not have done it, not there, not then, not in those terms.
ggreenwald
@davidfrum Re: motive: I can tell you first-hand, having partially defended the decision, that progressives are genuinely furious about it
davidfrum
@ggreenwald. Well do you think Alito committed a sin in departing from tradition of judges not reacting to president’s words?
davidfrum
@ggreenwald I do. Yet if president criticizes him to his face, not very realistic to ask him to sit there stoney-faced.
ggreenwald
@davidfrum I’d bet Obama genuinely found the decision wrong and outrageous on the merits, like most progressives did.
davidfrum
@ggreenwlad Especially when the criticism is so misleading and yes demagoguic.
davidfrum
@ggreenwald. Well obviously president is within his rights to diisagree with opinion.
ggreenwald
@davidfrum Yes, I think Alito’s sin was serious – http://is.gd/7dy2z – Justices have a duty to be apolitical – the other Justices managed
davidfrum
@ggreenwald. And even to ask Congress for legislation to overturn it. But not to reject authority of Court.
ggreenwald
@davidfrum He didnt reject Court’s authority (“with all due deference to separation of powers”)-he disagreed, then called on Congress to fix
davidfrum
@ggreenwald. Yr column is right on broad point, but unfair to Alito on specifics. (Sorry I/m a tweet behind now.)
davidfrum
@ggreenwald. I assume he was caught by surprise. His reaction was spontaneous and immediate.
ggreenwald
@davidfrum We should discuss this in some other venue – hard to do on Twitter – and probably making our Twitter readers hate us
davidfrum
@ggreenwald. Still wrong , yes. But Obama was wrong first – and with less human excuse.
russskinner
.@davidfrum Why was Alito the only justice to visibly react, then?
ggreenwald
@davidfrum I don’t think Alito did called attention to himself purposefully – but it was intemperate and he should have known
davidfrum
@ggreeenwald. Fair enough. Let’s adjourn to long form.
teabag // Jan 30, 2010 at 3:38 pm
Sinz,
First amendment rights do not belong to foreigners, so why should they belong to foreign corporations?
teabag // Jan 30, 2010 at 3:58 pm
Sinz.
So you are happy that our biggest competitor nation China, whose government owns several US Corporations have a chance to shape legislation by making sure “their” guys get elected.
kevin47 // Jan 30, 2010 at 4:32 pm
Soros isn’t a foreign national, but I think the same principle applies. It’s a loophole by which, theoretically, foreign interests can influence our elections, and Soros’ politics certainly reflect his Eastern European background. But I prefer the problem to the solution. I don’t think we are going to all become Socialists at Soros’ behest.
It’s worth noting that nobody seriously thinks the floodgates are open for foreign corporations to set up the United States government as a puppet regime. For liberal critics, the biggest problem with the ruling, and Stuart Taylor has some solid analysis on this (http://www.nationaljournal.com/njmagazine/openingargument.php), is that stockholders have no say over how their companies advocate.
I disagree with his analysis; I don’t think people have any sort of constitutional right to purchase stock without a political conscience. But at least it’s an analysis, as opposed to a single talking point reshaped in increasingly bracing terms.
Kanzeon // Jan 30, 2010 at 7:08 pm
sinz54:
“The Citizens United ruling had nothing to do with direct campaign contributions.”
I think it does. It overruled Austin. Austin was about contributions, not direct speech.
http://supreme.justia.com/us/494/652/case.html
http://en.wikipedia.org/wiki/Austin_v._Michigan_Chamber_of_Commerce
Kanzeon // Jan 30, 2010 at 7:49 pm
sinz54:
It sounds very broad-minded and modern to accept the idea that foreign corporations should be able to speak their mind in the American political system. But consider:
If we were in India, would you want WalMart and Microsoft to spend unlimted money to defeat a law on working conditions and the minimum wage? Do we want Toyota to spend money to defeat health care, because out health care system puts us at a competitive disadvantage? If you are a conservative and think unions are the root of our economic problems, do you want Toyota to promote unions? Do I want a foreign oil corporation to promote offshore drilling? (I don’t, because the people who live here and have to live with the policies should have a say on wages and the environment of our country, and no one else).
Do we want Chinese companies to support policies because they will have the effect of maintaining the trade imbalance?
Do we want a company like Airbus, which is government subsidized, to participate directly in our political process to undermine Boeing?
I can see absolutely no advantage and numerous disadvantages.
kevin47 // Jan 30, 2010 at 11:59 pm
Kanzeon,
Don’t you think there is some measure of balance in the fact that any candidate receiving “foreign money” can be criticized by his opponent for having done so. Again, this loophole seems to be fairly limited, and almost certainly is temporary.
My prediction? The Democratic national committee decides to target 5-7 candidates that can, ostensibly, be tied to these foreign donations in 2012. That will, more or less, end the practice, yes?
Kanzeon // Jan 31, 2010 at 12:33 am
“Don’t you think there is some measure of balance in the fact that any candidate receiving “foreign money” can be criticized by his opponent for having done so.”
Not really. I would imagine that foreign money would go to both parties, once there was enough available. That might work with specific candidates, but not with issue ads, and only if there was some parity in fundraising. This isn’t just federal elections, but state elections, where the financial imbalance could be striking.
I don’t really understand why anyone would be even remotely tempted to defend the practice of any nation inviting foreign money into their elections.
kevin47 // Jan 31, 2010 at 2:55 am
“I don’t really understand why anyone would be even remotely tempted to defend the practice of any nation inviting foreign money into their elections.”
There is a difference between defending a practice and suggesting that the possibility of said practice is unlikely to be consequential. I can’t imagine why anyone would want to broadly defend McCain-Feingold, but people did in spite of it’s universally recognized imperfections.
All of this said, the loophole for a foreign entity to influence American elections is very, very narrow. There are laws still on the books (http://fec.gov/law/feca/feca.pdf) prohibiting a foreign national from making a campaign contribution, and for the purposes of this law, a national is defined as a corporation.
As I understand it, then, the loophole resides within American companies held by a plurality of foreign stockholders, or some other sort of back door. By the same token, doesn’t this bill dis-enfranchise (so to speak) minority stockholders? As such, isn’t the real driving force behind liberal opposition to this bill at odds with the talking point? I mean, it happens, and that’s politics, but for the purposes of this board, do you have a better argument?
Kanzeon // Jan 31, 2010 at 5:33 pm
kevin47:
As to the politics, I assume that the Democrats see a fundraising advantage conferred to the Republicans by the decision which could come into play next year. Obama wants to deal with that imbalance legislatively, and quickly, and hence uses the national platform of the SOTU to help these legislative initiatives. That is separate from the question of whether his criticisms have merit.
At this point, my purpose is to understand the decision and its likely effects. As sinz stated, there is some difference in the case law between contributions and direct speech (as I understand it, the court has allowed caps on contributions, finding that preventing corruption is a compelling government interest). The court in Citizens United expressly declines to state that preventing foreign influence is a compelling state interest. Hence, I think it is in doubt that those laws preventing foreign corporations from making contributions will be held Constitutional. Clearly, however, caps on contributions for foreign corporations will not prevent direct speech.
I don’t know if this is a grave issue – I simply don’t know enough about campaign finance and how much foreign influence is already in the system. I also don’t know whether – if and when the question is squarely presented – some of the majority in Citizens United will find a compelling interest in excluding foreign influence and squelch this concern.
I find myself agreeing with the Austin case, and I think that the greater protection of the rights of corporations does lead to a number of issues, including foreign influence. The thing about loopholes and rules, they seem to naturally stretch over time, so the degree of concern and form it takes will change over time. I really see no benefit to the nation from the Citizens United decision.
But, I appreciate the opportunity to actually discuss the decision, not the senseless issue of whether there was a breach of propriety, or a dumb debate in which the liberals say that it’s just crazy for corporations to have any rights and the conservatives say Obama lied.