Perhaps it was from the surprise of it all, but as I wrote last night, Justice Alito didn't take Mr. Obama's trash talking in stride. He shook his head and mouthed "not true" as Mr. Obama said the ruling would open the floodgates to special interest money in political campaigns. You'd have to go back to, well, I don't think this has ever happened before--a justice reacting publicly like that to a president's speech. But then again, no president in modern history has ever gone after the Supreme Court in a State of the Union, either, so let's call this one a draw.
But there will be fallout from this. As my friend Orin Kerr put it this morning on Volokh, you can almost see the justices thinking as they're sitting there listening to the president and Congress jeer at them: "We are so not coming to this next year."
And Orin points out that Justice Harlan believed it was inappropriate for justices to attend such an inherently political event. In fact, six justices is a pretty high attendance mark. In 2008, 2007, and 2006, only four showed up. Before that, it was only one or two. And there have been years when no justices attended.
But it's even more than that. The fact that Mr. Obama was willing to so dramatically take on the Court as part of his new-found populist persona shows he intends to keep this storyline going awhile--including, perhaps, through confirmation hearings for the expected Supreme Court vacancy later this year. Those hearings will take place as the midterm elections are well underway, and they give the White House chance to make political points by hammering the Court some more.
That's why Mr. Obama may go an entirely different direction with his nomination than we've all expected. I have long predicted the president would tap Elena Kagan, the dazzling former Harvard Law School dean who now is Solicitor General, to replace Justice John Paul Stevens (pictured). (And remember, I did accurately predict on Face the Nation that Alabama would win the National Championship.)
But that was before Scott Brown and the retooling of Mr. Obama as a president who stands against corporate interests and fights for the little guy.
Granted, Kagan defended campaign finance reform in the Supreme Court. But as a northeastern Ivy Leaguer, she doesn't fit the populist narrative of the outsider, the regular person. And in conversations this week with people inside and outside the administration, it's clear Mr. Obama could look elsewhere for his next nominee.
To continue his populist narrative and really make something of it--that the Court is out of touch, in the pocket of big business—Mr. Obama needs someone with a more common touch. Someone from the Midwest, someone who attended a state school and state law school, someone who has known the struggles--a working mom, for example.
That's someone like Judge Diane Wood. Not Elena Kagan.
So the astounding win in Massachusetts of Scott Brown--the pickup driving political unknown who grabbed Ted Kennedy's Senate seat and put the finishing touches on Obama's new populist approach--may reverberate well beyond Congress and the White House. He could well have shaped the future makeup of the Supreme Court. We got the first public clues of that last night.
More Coverage of Obama's State of the Union:
Obama Vows to Fight for Jobs
Full Text of Obama's Speech
Alito Winces as Obama Slams Supreme Court Ruling
Obama's Speech Leveraged His Strengths
Obama Criticizes Supreme Court
Full Coverage: Obama's 2010 State of the Union