Debating Obama's Supreme Court Diss
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.
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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./a>
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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]."/a>
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dg22727
@davidfrum that sounds like a particular case to me/a>
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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/a>
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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./a>
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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 /a>
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dg22727
@davidfrum and for that matter, am gratified to have received reaction, even if I still don't get the big deal about it /a>
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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. /a>
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dg22727
@davidfrum ha. I'll leave that debate to you and him :) /a>
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ggreenwald
@davidfrum FDR explicitly cited the Preamble, Art. I and the Constitutional Convention to argue the Supreme Court was wrong /a>
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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. /a>
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russskinner
@davidfrum Just eavesdropping here, but can u find previous example of SCOTUS ignoring 100 years of precedents?Going out of way to overturn?/a>
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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?/a>
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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."/a>
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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 /a>
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ggreenwald
@davidfrum FDR accused the Court, with those opinions, of "imperiling" the "process of democracy" - how gauche!! /a>
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davidfrum
@ggreenwald Let's hypothetically suppose you were right /a>
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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? /a>
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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 . . . . /a>
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ggreenwald
@davidfrum (3) what's Obama's "sinister" motive? The Constitution requires he tell Congress of problems they need to address -- he did. /a>
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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. /a>
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ggreenwald
@davidfrum Did you read Reagan's 1988 SOTU? He rather directly criticized the Court's school prayer jurisprudence. /a>
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davidfrum
@ggreenwald And no Reagan did not criticize school prayer decision of 25 yrs before. He urged Congress to pass a school prayer amendment. /a>
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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 /a>
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davidfrum
@ggreenwald. Not at all. Here are the words I wrote that triggered this whole tweet chain.... http://bit.ly/bBli5Y about /a>
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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? /a>
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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. /a>
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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 /a>
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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 /a>
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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? /a>
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ggreenwald
@davidfrum I don't think Alito did called attention to himself purposefully - but it was intemperate and he should have known /a>
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davidfrum
@ggreeenwald. Fair enough. Let's adjourn to long form.