JUSTICE Samuel Alito was responsible for the head shake seen 'round the world at President Obama's State of the Union address.
Alito indicated his disapproval and mouthed the words "not true" when the president noted the court's recent decision in Citizens United v. FEC by saying the court had "reversed a century of law" that will invite "special interests - including foreign corporations - to spend without limit in our elections." Democrats roared their approval. Republicans were silent, but later voiced their support of Alito's response.
The issue, according to Georgetown law professor Randy Barnett, is that "the Supreme Court came to the chamber of the House out of courtesy to the president to hear an address that they have to sit passively and listen to," he told me.
"The president knows that. He writes a speech which calls out the Supreme Court for a decision it reached last week. And he delivers this condemnation in such a way as calculated to have hundreds of Democratic partisans stand up surrounding the justices - who must sit there - and cheer, which is what happened . . . And this is just disrespectful behavior to the court."
That's not to say that presidents don't have a right to criticize the Supreme Court or its decisions. Far from it. "I believe it's the duty of the president to do that," Barnett said, "but this is just not the way to do it."
Many are now debating the campaign-finance case, and the reaction by Alito. But here's another inquiry: How did Obama's predecessors convey their disapproval of high-profile decisions while in the same spot?
There's been no more controversial case in the modern era than Roe v. Wade, and no more staunch opponent of that decision than President Ronald Reagan. So how did the Great Communicator address Roe when he stood a few feet from the members of the court?
Among Reagan's State of the Union addresses, on four occasions he did what Obama attempted to do: urge Congress to address a Supreme Court decision with which he disagreed. But in the Gipper's case, he avoided any direct reference to the Supreme Court decision.
The issue of abortion, he acknowledged in 1984, was "very controversial." He asked: "But unless and until it can be proven that an unborn child is not a living human being, can we justify assuming without proof that it isn't?"
And then, sounding more than a little Obama-esque, Reagan concluded: "We should rise above bitterness and reproach, and if Americans could come together in a spirit of understanding and helping, then we could find positive solutions to the tragedy of abortion."
The following year, he added a politically unassailable appeal on behalf of parents who can't conceive their own children. "It is a terrible irony that while some turn to abortion, so many others who cannot become parents cry out for children to adopt. We have room for these children. We can fill the cradles of those who want a child to love." He ended with a bland appeal for Congress to "move this year on legislation to protect the unborn."
His approach broadened even further in 1986, when he characterized abortion as a "wound" on the "national conscience" of this "nation of idealists." "For the rest of my time," he said, "I shall do what I can to see that this wound is one day healed."
By his final State of the Union in 1988, Reagan had moved on to advocating against federal funding of abortion, which he described as a "family issue" for "a good nation" and "a moral people" to consider and reject.
And again he concluded with a call for bipartisanship: "Let us unite as a nation and protect the unborn with legislation that would stop all federal funding for abortion - and with a human- life amendment making, of course, an exception where the unborn child threatens the life of the mother."
(Video of the final Reagan SOTU can be seen at www.
program/1248-1. His discussion of abortion comes at exactly 35 minutes in.)
Interestingly, accompanying the C-SPAN coverage of that Jan. 25, 1988, address is an unnamed anchor's observation as the five Supreme Court justices present entered the House to a standing ovation:
"You won't see them applaud during the speech, by the way. Not any discourtesy. But it's just that they have to make the final judgment maybe of what the president is saying if it gets to them. So they're here as independent observers to show our democratic system. But they don't participate in a partisan way, which some would think of if they applauded."
Listen to Michael Smerconish 5-9 a.m. on the Big Talker, 1210/AM. Contact him via the Web at www.smerconish.com.