In a breach of protocol, Associate Justice Sam Alito was filmed during the State of the Union address last night shaking his head and mouthing “not true” in response to the President’s criticism of the Citizens United ruling on corporate campaign finance limits. Ironically, Rep. Joe Wilson promised to restrain himself during this speech and not scream “you lie” again during the President’s speech. For a justice, this breach (shown below) is no less remarkable. It is, in a word, injudicious.
Justices are expected not to express support or opposition to a president during the State of the Union — symbolizing the neutrality of the Court. This demonstration of Alito’s views undermines that principle and makes the Court look partisan and rather petty. Whether or not Obama overstated the holding is completely immaterial — just as immaterial as what Obama was referencing when Wilson screamed “You Lie!’
Justice are expected to speak through their opinions alone. Indeed, the relatively recent trend of justices speaking at conferences and associational meetings have troubled many of us. I have long favored the prior view that justices rarely speak in public — largely confined to graduations, funerals and the like. While Alito clearly experienced an uncontrolled moment, justices are expected to control themselves and act judiciously — particularly at major events like a State of the Union.
Alito should apologize to the President and to Congress (he and his colleagues are guests of the United States Congress) for the incident. Notably, if a president (or any citizen) goes to a court of law and mouths objections, they risk a contempt warning or sanction from the judge. No one requires a justice to come to the State of the Union. The price of this particular trick is to remain stoic and neutral. As with Wilson, there is limited audience participation. This is not Oprah, it is the State of the Union. When it comes to the justices, they should ideally not even applaud let alone express their views. They are present to show the unity of the tripartite system, but also to reaffirm the strict neutrality and apolitical role of the Court.