Greenwald Is Wrong On Alito

by Bryan

I can’t help but think that Glenn Greenwald has Alitogate totally backward. He writes, referring first to the “You Lie” outburst:

Wilson and Obama are both political actors, it occurred in the middle of a political speech about a highly political dispute, and while the outburst was indecorous and impolite, Obama is not entitled to be treated as royalty.  That was all much ado about nothing.  By contrast, the behavior of Justice Alito at last night’s State of the Union address — visibly shaking his head and mouthing the words “not true” when Obama warned of the dangers of the Court’s Citizens United ruling — was a serious and substantive breach of protocol that reflects very poorly on Alito and only further undermines the credibility of the Court.

Somehow this gets me thinking both to the end of the Sopranos*—where there was rampant talk of how fiction “makes its own rules”—and of the end-the-filibuster movement, which stresses that the filibuster is a creation of the same group it undermines. Wilson’s outburst was worse than Alito’s non-outburst because for the exact reason Greenwald cites: Obama and Wilson are both political actors, and Wilson effectively broke character. He signed up to play by those rules and he deliberately and unmistakably broke protocol.

Alito, on the other hand, didn’t say anything. Greenwald writes:

Justice Alito’s flamboyantly insinuating himself into a pure political event, in a highly politicized manner, will only hasten that decline.  […] 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.

First, to say that Alito acted “flamboyantly” is so disingenuous that it’s absurd: He mouthed some words. Unlike Joe Wilson, whose job it is, at least partially, to maintain composure in this hyper-public setting, more than 99 percent of Alito’s job has nothing to do with maintaining some sort of stony composure in public. His job is to be the best Supreme Court Justice he can be. Is he partisan? Probably, but this doesn’t make him any more or less of a Republican hero than he was before. Republicans love the decision, and Obama didn’t like it. It’s not like Alito told us anything we didn’t know about where he stands on the issue, nor was he technically wrong. Nor should he have mouthed those words. It was, if not a startling breach of protocol, certainly bad form.

But Joe Wilson’s outburst was much worse. He flagrantly and obviously violated the terms of the arrangement for which he specifically signed up. I don’t want Sam Alito on the court any more than you do, but I don’t give a crap about this. Mouthed words or not, we know what side he’s on.

* To draw out the Sopranos analogy, many people, including myself, initially made “Tony is Dead” arguments based clues we erroneously believed were inserted into previous episodes. Something on the order of “Once it’s over, it’s just black,” or something. I don’t remember exactly what we thought was said, but it wasn’t. Without that clue, any argument other than “it’s ambiguous” fell apart completely. The only justification for truly “proving” he was dead was built upon any rules that this particular fiction had created for itself.