If you, like members of the news media, are wasting time worrying over Justice Alito's facial expressions during the President's annual message last night, consider yourself nominated. I'm only aware of this being an issue because the story is prominent on the homepage of my work computer, but I can only imagine what some bloggers are writing about Alito's apparent scowl or his mouthing of dissenting words after the President criticized the Court's vote on corporate political advertising. The next Joe Wilson? Must we speculate? In any event, I suppose a Justice is entitled to at least a facial reaction when the President criticizes the Court.
The more interesting angle of this story is the possibility that the President is going to go after the "conservative" majority of the Roberts Court. As an instructor in constitutional law, Obama has some credentials to question the majority's reasoning, and he has the ancient Democratic precedents of Andrew Jackson and Franklin Roosevelt to stiffen his spine. The President paid lip service to the separation of powers even as he criticized Alito and his co-voters, but his real transgression is his refusal to defer to the majority the way he did during the 2008 campaign when it advanced an individual-rights reading of the Second Amendment. Jacksonian Democracy asserted that the three branches of government were all equal in their right and authority to interpret the Constitution, with the people as final arbiters on Election Day. The issue of corporate freedom of speech is a good one on which to take a Jacksonian stand, especially when the current Court majority can be accused plausibly of putting the spirit of ideology before the letter of the law. But if you scowl or mutter to yourself as you read this, I won't hold it against you.