the state of the union

That was not a “Joe Wilson” moment.

It is a convention that the Congress invites the president to deliver the State of the Union before a joint session of both houses. No Constitutional obligation requires the Congress to invite the president, and nothing requires the president to deliver a speech. Indeed, the Constitution requires that the president,

“shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.”

Presidents Georg Washington and John Adams senior both delivered yearly addresses. Presidents Thomas Jefferson [1801-1809] through William Howard Taft [1913 - 1917] delivered their addresses in writing. Woodrow Wilson reestablished the formal speech. President Truman brought it to television and President Johnson brought it to primetime.

But we Americans have come to appreciate the great symbolisms this moment has acquired.

For instance, another convention is the invitation of the Supreme Court. Justice Bryer was the only Justice in attendance at several addresses given by President Clinton, and in 1986 no justice attended—the only time. This year, six justices were gracious to attend.

By convention, these justices sit politely, quietly dressed in their robes representing the judicial branch of government. It should not take a history nerd to be impressed by this moment—and in America, how lucky we are to get a moment like these each year.

The president—our president—submits his agenda to the legislature, calling on it for aid and advice. The president enforces the law, but he still needs the Congress to give him the go ahead. And in this scene—a little bit partisan, a little bit intense, but always, ideally, amicable—the Court gives no input. It is a marvelous representation of the American government. The Court has no agenda and no bias as to what the law shall be or how it shall be enforced: they simply referee when called to do so.

At the State of the Union, they represent what must remain steadfast, unwavering and immune from politics in the American government: justice and the Rule of Law.

Pollyannaish? Not at all. To be certain, those nine Justices are men and women, they are lawyers, and they are Americans. They vote, they take sides, they go to Church and Synagogue for guidance and they pay taxes. But in their roles as Justices, they are blind and take the greatest care to hold sacred the Rule of Law.

They don’t always succeed in their execution; I’ll be the first to admit this.

But the State of the Union is an American moment. It is not the time to obliterate conventions and institutions for political shock value. At this moment, it does not matter that we didn’t like the potential political impact of a Supreme Court decision.

In fact, in a ninety minute speech before 50 million Americans, jam-packed with a year’s worth of legislative proposals, there is simply no room to parse the details of each decision. Not seriously, anyway. President Obama dedicated a moment—two maybe three minutes—to a 180 page decision, stuffed with case law, reasoning and analysis.

It is entirely within the president’s role to criticize and politicize Court decisions. He would not be alone: four Justices dissented in Citizens United.

This is simply not done at the State of the Union. This is a setting where the Justices are present, but, by convention, not even able to respond. Surely, the president could have alluded to the decision and advocated a campaign finance reform for the new Congressional session. That would have been fair and entirely appropriate. But to essentially suggest that the Court had violated the Constitution by going recklessly against precedent, as if for some ulterior political motive, is uncalled for.

Moreover, Obama utterly misrepresented the decision by declaring that it would open the floodgates to foreign corporations’ contributing to U.S. elections. “Not true,” Justice Alito muttered. And it is not. Quite simply, this is not true. Federal law forbids foreign donations—corporate or individual—from being contributed to U.S. elections (state, local or federal). They cannot even give money to U.S. subsidiaries for the purpose of donating to campaigns. Furthermore, the majority in Citizens United expressly states that foreign donations are unaltered by the ruling.

This leads one to believe that either the president does not know the law or that he was intentionally misrepresenting the law for political gain: he got a standing ovation from House and Senate Democrats. What a populous chord he was striking, attacking big-business by slapping around the Court!

Indeed, given that the law was passed in 1996, it is somewhat baffling that so many Congressmen stood and applauded. Many of them had to have been in Congress in 1996. Surely both Speaker Pelosi and Vice President Biden were. (In fairness, President Obama was finishing his third year of elementary school at about this time).

So in the last week, many in the media and Congress have had the audacity to deride Justice Alito for breaking convention by muttering those words. Of course he did—the president had just annihilated the convention.

It has been said this was Alito’s “Joe Wilson” moment. But Justice Alito is undeniably right that the president’s remark was untrue. Actually, with regard to accuracy, Joe Wilson was not even a Joe Wilson moment: he was right too. The difference is, Joe Wilson was disrespecting the president; whereas, Samuel Alito had just been disrespected by the president. Justices Kennedy and Roberts might have been class acts for not responding to the false attack against their majority decision, but who can blame Justice Alito for muttering?

In adlibbing the line “with all due deference to the separation of power,” as if it mitigated the fact that he was proceeding to join with half of one branch of government in lambasting 5/9th of another branch a government, President Obama indicated that his direct public attack of the Court was unprecedented. Otherwise, why add this line? Would he have presumed, otherwise, that people would consider that publically attacking the judicial branch at the State of the Union might infringe on the doctrine? He would have been right.

In a word, we cannot become cynical about these institutions and conventions. The man who occupies the house that Washington built should wise up to that. He is still my president, but sometimes the man holding the office is a real . . . .