Last night, when President Obama sharply criticized the Supreme Court for their decision in the Citizens United case, which could lead to a massive outpouring of corporate money in federal elections, Justice Samuel Alito vigorously shook his head and mouthed “That’s not true” to Obama’s claims. Nobody seems to be sure what exactly wasn’t true: was it the claim from Obama that the ruling “overturned a century of law”? Was it the allusion to the potential for foreign entities to finance elections (and yes, this ruling does open up that possibility, no matter how Alito objects)? Nobody really knows.

What we do know is that Alito has few defenders today for his breach of protocol – it is highly unusual for any Supreme Court Justice to do anything at the State of the Union address besides listening to it. Sure, Orrin Hatch called Obama “rude” for daring to offer his opinion on Citizens United within earshot of the Justices. But most others had a different opinion. Here’s Jeffrey Toobin, putting this in the proper context:

The larger issue raised by Alito’s pouty face goes to the place of the Court in American life. In public, and especially in confirmation hearings, the Justices try to portray themselves as Olympian figures, removed from the hurly burly of politics. In Chief Justice Roberts’ famous (now mostly infamous) phrase at his confirmation hearing, the Justices are like baseball umpires, who do nothing more than call balls and strikes. But that’s not true—and it never has been true. (I discussed this issue in my Profile of Roberts.) The Justices have strong political views, which have powerful impacts on how they do their jobs. Alito performed the public service of making this point clearer for a national audience [...]

I don’t begrudge Alito his grimace. He was just being honest. Alito’s role in that room—and his place at the Court—is no different from that of the Republican members of Congress; both are dedicated political adversaries of the President. The camera—and the Justice—didn’t lie.

Glenn Greenwald, who actually supported the Citizens United decision on some level, actually disagreed, believing that the political action by Alito represents a decrease in the credibility of the Court:

There’s a reason that Supreme Court Justices — along with the Joint Chiefs of Staff — never applaud or otherwise express any reaction at a State of the Union address. It’s vital — both as a matter of perception and reality — that those institutions remain apolitical, separate and detached from partisan wars. The Court’s pronouncements on (and resolutions of) the most inflammatory and passionate political disputes retain legitimacy only if they possess a credible claim to being objectively grounded in law and the Constitution, not political considerations. The Court’s credibility in this regard has — justifiably — declined substantially over the past decade, beginning with Bush v. Gore (where 5 conservative Justices issued a ruling ensuring the election of a Republican President), followed by countless 5-4 decisions in which conservative Justices rule in a way that promotes GOP political beliefs, while the more “liberal” Justices do to the reverse (Citizens United is but the latest example). Beyond that, the endless, deceitful sloganeering by right-wing lawyers about “judicial restraint” and “activism” — all while the judges they most revere cavalierly violate those “principles” over and over — exacerbates that problem further (the unnecessarily broad scope of Citizens United is the latest example of that, too, and John “balls and strikes” Roberts may be the greatest hypocrite ever to sit on the Supreme Court). All of that is destroying the ability of the judicial branch to be perceived — and to act — as one of the few truly apolitical and objective institutions.

Justice Alito’s flamboyantly insinuating himself into a pure political event, in a highly politicized manner, will only hasten that decline. On a night when both tradition and the Court’s role dictate that he sit silent and inexpressive, he instead turned himself into a partisan sideshow — a conservative Republican judge departing from protocol to openly criticize a Democratic President — with Republicans predictably defending him and Democrats doing the opposite. Alito is now a political (rather than judicial) hero to Republicans and a political enemy of Democrats, which is exactly the role a Supreme Court Justice should not occupy.

Both of these seem right to me. A Justice should not be a political actor, but with the appointment by George Bush, we got one. And everyone knows it, so it might as well be out in the open. Maybe people will have a better understanding of the naked ideological project Republicans undertook with respect to the judiciary over all these years.