Justice Samuel Alito has been unfairly criticized by several legislators, as well as by media commentators, following his reaction to a surprising rebuke to the Supreme Court delivered during the State of the Union Address.  The rebuke, directed at the majority of the Court that issued the recent Citizens United campaign finance decision, was a surprise not only because of the venue in which it was delivered, but also because it mischaracterized that decision as “revers[ing] a century of law.” 

The reaction caught by the cameras was so subdued that it strains credulity to suggest that the Justice was trying to do anything remotely distracting or disruptive.  That did not stop Senators Russ Feingold (D-WI) and Ted Kaufman (D-DE) from pointedly accusing Justice Alito of acting inappropriately.  Judiciary Committee Chairman Pat Leahy (D-VT) went as far as to single out Justice Alito in a floor speech with a snide attack on the Justice for supposedly going back on his testimony during his nomination hearings about the limited role of judges.  Sen. Leahy proceeded to make the same mischaracterization of Citizens United as the State of the Union Address with an uninformed reference to “100 years of the Supreme Court’s own precedents.”

There is a century-old federal statute that prohibits direct contributions to campaigns by corporations, but the Court’s decision did not touch that.  It struck down a more controversial 1947 provision banning independent expenditures by corporations and labor unions.  That provision only became law over the veto of President Harry Truman, who warned that the ban was “a dangerous intrusion on free speech.”  In cases that arose during the 1940’s and 1950’s, Justices Hugo Black, William O. Douglas, Frank Murphy, Wiley Rutledge, and Chief Justice Earl Warren reached the same conclusion that the Court would in Citizens United. Although a majority of the Court did not decide the issue back then, no one would consider those names of the past—all considered liberals in their time—to be pawns of corporations. Regardless of whether you ultimately agree with their conclusion, the justices who joined the recent decision deserve credit for taking seriously the weighty free speech considerations involved in the case.

As a constitutional law counsel on the Senate Judiciary Committee who worked on Justice Alito’s nomination, I was glad to see the nomination prevail over bitter party-line opposition, but disturbed by the tactics used against him.  Before and after his nomination, Justice Alito has consistently displayed the decorum and respect that was sadly denied him by opponents of his nomination when he faced the Senate.  He did not deserve this latest round of demagoguery, particularly from the body that handled his nomination.

Note: Frank Scaturro, currently a Visiting Assistant Professor of Law at Hofstra Law School, served as Counsel for the Constitution on the Senate Judiciary Committee from 2005 to 2009.  He is a candidate for the United States House of Representatives in New York’s 4th Congressional District.