Why Justice Alito Was Moving His Mouth Last Night

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We find it hilarious that Supreme Court justices are expected to be so utterly reserved and objective at all times that the act of silently mouthing words to oneself sets off a firestorm of controversy, but that's the way it is. Accordingly, after Justice Samuel Alito shook his head and said the words "not true" to himself last night in response to President Obama's criticism of a recent Supreme Court ruling on campaign-finance law, everyone has been trying to figure out what, exactly, caused Alito to fly off the handle like a laboratory monkey infected with the "rage" virus — and whether his drastic loss of self-control was justified.

First of all, here's what Obama said:


Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that's why I'm urging Democrats and Republicans to pass a bill that helps to right this wrong.

Well, as it turns out, Alito may have had a few things to quarrel with here. Linda Greenhouse, the Times' Supreme Court guru, suspects that Alito was responding to Obama's claim that the Court has "reversed a century of law." This assertion, Greenhouse writes, is "imprecise."


The law that Congress enacted in the populist days of the early 20th century prohibited direct corporate contributions to political campaigns. That law was not at issue in the Citizens United case, and is still on the books. Rather, the court struck down a more complicated statute that barred corporations and unions from spending money directly from their treasuries — as opposed to their political action committees — on television advertising to urge a vote for or against a federal candidate in the period immediately before the election. It is true, though, that the majority wrote so broadly about corporate free speech rights as to call into question other limitations as well — although not necessarily the existing ban on direct contributions.

Basically, the Court didn't explicitly strike down the law Obama was talking about, but their ruling was so broad that it could have called it "into question." Is that something worth silently mouthing over? Maybe. But that might not have even been the target of Alito's ire.

In a Times fact-check of the speech, David Kirkpatrick zeroes in on the remark about the floodgates being opened for "foreign interests" to spend on American elections. (Furriners!?! Alert the militias!) Except that it's not entirely true. Kirkpatrick writes,


The majority opinion in the case, Citizens United v. the Federal Election Commission, specifically disavowed a verdict on the question of foreign companies’ political spending.

“We need not reach the question of whether the government has a compelling interest in preventing foreign individuals or associations from influencing our nation’s political process,” Justice Anthony M. Kennedy wrote. The court held that the First Amendment protected the right of American corporations to spend money on independent political commercials for or against candidates. Some analysts or observers have warned that the principle could open the door to foreign corporations as well.

President Obama called for new legislation to prohibit foreign companies from taking advantage of the ruling to spend money to influence American elections. But he is too late; Congress passed the Foreign Agents Registration Act in 1996, which prohibits independent political commercials by foreign nationals or foreign companies.

Politifact makes pretty much the same case, that while the Court's decision went out of its way to leave untouched the ban on foreign meddling on our elections, "the ruling could open the door to foreign companies spending on American campaigns, given the general direction of the majority's opinion." So it could open the "floodgates," as Obama put it, but it hasn't yet, necessarily. Then again, when is a metaphorical floodgate technically opened? It's all semantics, really.

So, maybe that's what Alito was reacting to. Maybe it wasn't. We probably won't know for a long time, because Supreme Court justices aren't typically the gabby type. It does seem odd that Obama, a former constitutional-law professor, would get so much sort-of wrong in just a few short sentences. Then again, many topics had to be simplified for the State of the Union. The Court's decision and its effects are complicated, and that wasn't the time or place to get into the nitty-gritty of constitutional law. Seventy minutes is long enough already.

Justice Alito’s Reaction [Opinionator/NYT]
Taking a Closer Look at Assertions on Domestic and Foreign Policy [NYT]
Why Alito shook his head: Obama exaggerates impact of Supreme Court ruling on foreign companies [Politifact]