One of the most dramatic moments in President Obama's State of the Union was his attack on the Supreme Court with the justices arrayed in front of him. "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," Obama declared. This prompted Justice Samuel Alito to shake his head and mouth the words "not true." Alito had good reason to feel defensive--he replaced Justice Sandra Day O'Connor, who recently criticized the 5-4 Citizens United campaign finance decision and suggested she would have voted the other way--and bloggers are already attacking Alito's inappropriate intervention as a "You lie!" moment. Even more significant is what it says about Obama's welcome readiness to attack the Court's conservative majority for its judicial activism in the future. The conservative justices may have calculated that they could strike down campaign finance restrictions without provoking a full-blown presidential backlash. But it takes only a few high-profile presidential attacks to tar a Court as activist in the eyes of history. During the 1930s, the Supreme Court upheld a great deal of FDR's economic recovery program, but the New Deal Court is remembered today as a group of unprincipled activists because of just a handful of high profile decisions that FDR prominently attacked.
It's a relief to see former Professor Obama having the nerve to stand up for judicial restraint and to criticize the conservative justices to their faces. If the justices don't take the criticism to heart, they're headed toward a full-blown confrontation with the White House and Congress that won't end well for the Court.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.