Tuesday, February 9, 2010

Special Interests, Public Opinion and the Citizens United Decision

Plenty of pundits and politicos had an opinion about President Obama's SOTU criticism of the Supreme Court's decision in Citizens United, including PA's very own Richard Albert.

Whether or not its good constitutional law or policy for the President to take on the judicial branch is one debate. But the politics of the matter is another. And now, some poll results are starting to trickle out, and it seems like criticizing the court is, indeed, good politics, at least on this count. According to this Politico story, voters oppose the Court's ruling 2-1, with many feeling the ruling may have solidified popular feels of disconnect between Washington and Americans in the rest of the country.

Maybe here lies another justification for the critique: doesn't the President have an obligation to voice concerns of the electorate, even about coordinate branch constitutional interpretation?

Moving on, I just saw this interesting piece by Ian Ayres and Bruce Ackerman offering a contractual means of getting around Citizens United, by restricting the campaign spending of corporations receiving federal contracts.


  1. Interesting, Jon. I like, though I do not necessary agree with, your suggestion about the presidential duty to express the views of some segment of the population.

    I wonder, though, whether you would you make the same argument about President Bush expressing the views of a clear majority of the electorate--directly to the sitting Justices of the Supreme Court--that Roe was incorrectly decided? Or do you think there might be something qualitatively different between these two kinds of controversies?

    Not trying to bait you. Just really quite interested in your take on this.

  2. Hi Rich, sorry I didn't see this until now (i had to re-enable notice when comments are posted to my blog posts.

    I don't think there is something qualitatively different between these two examples. If you believe the President has the duty and responsibility to interpret the Constitution (the Framers certainly believed he did), then part of that duty involves explicitly saying that he disagrees with the other branch's interpretation, whether in a speech or by exercise of the veto.

    And, in fact, isn't it more respectful to state that belief directly to the Court, in a formal and constitutionally mandated session like the SOTU? I say that is fine, and perhaps even more respectful, than the approach of some politicians-- including Bush at times-- who rail against the Court, but more as a caricature, like campaigning against "liberal activist judges". Rather, Obama offered a substantive critique of the Court's decision directly to the judges, and not a sneering campaign against them on a political stump somewhere.


Website Tracker