"The process of collective bargaining, as usually understood, cannot be transplanted into the public service."

FDR wrote in 1937, quoted by Real Clear Politics:

Yes, public workers may demand fair treatment, wrote Roosevelt. But, he wrote, "I want to emphasize my conviction that militant tactics have no place" in the public sector. "A strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government."

Judge Posner says maybe it wouldn't have been so bad if FDR's Court-packing plan had passed.

"It would have increased turnover on the Court, reduced the average age of justices, made an appointment to the Court less prestigious, and made the justices more cautious about bucking strong political forces, because they would have learned that Congress was willing as well as able to rein them in. We would probably have been spared the excesses of the Warren Court, which turned Roosevelt’s idea of the 'living Constitution' on its head: where Roosevelt wanted the Court to stand aside so that the government could deal with the distinctive problems of modernity, the Warren Court responded to the surging crime rates of the 1950s and 1960s by increasing the rights of criminals."

That's snazzily put, but it's really saying the same old thing about judicial restraint. Deference to legislatures in FDR's day served a liberal goal, and the activists were the conservatives. In later decades, judicial activism was mobilized for liberal ends. Over time, conservatives and liberals have used both judicial restraint and judicial activism to suit their ends.

The more fundamental question is whether we'd be better off if the judicial branch were subordinated to the political branches. I would think that conservatives and liberals alike — the full range across the political spectrum — benefit from a system of separated powers with 3 branches that are well-balanced and strong within their own spheres.

We can fight forever about exactly what the 3 spheres of power really are and what constitutesproper balance — when courts should act and when they should defer to the democratic branches — but I balk at the invitation to be wistful about the missed opportunity to weaken and subordinate the courts.

Glenn Greenwald flails absurdly in a lame effort to take down Justice Alito.

Really, it drives me crazy to try to plow through the unedited dreck that Greenwald writes, but I feel compelled to defend Justice Samuel Alito who, when affronted by President Obama's accusation that the Supreme Court violated judicial norms, simply shook his head and mouthed (apparently) "not true."

Greenwald accuses Alito of "a serious and substantive breach of protocol that reflects very poorly on Alito and only further undermines the credibility of the Court." Further! Presumably, you're already against the Supreme Court, and Greenwald isn't using this post to bring you up to speed.

It has nothing to do with etiquette and everything to do with the Court's ability to adhere to its intended function.

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. 

Uh, yeah, which is why Obama's words were such an affront. Obama called the Citizens United case a "wrong," that is, a legal outrage of some sort, but, obviously, Alito's position is that the Court decided the case according to the law, that it said what the First Amendment means, and that its legal expertise is entitled to respect.

Alito's response didn't signify political disagreement. It was simply self-defense — a defense of the Court. It meant: We decide cases according to the law. That is apolitical.

Justice Alito's flamboyantly insinuating himself into a pure political event, in a highly politicized manner, will only hasten [the Court's] decline.

Shaking one's head and mouthing 2 or 3 words is "flamboyant"? Alito was sitting in his seat and he evinced a subtle reaction to a severe political attack. That doesn't make what he did "highly politicized." If anyone was "highly politicized," it was Obama. Alito's response was more of a reflex, and it was, I would assume, grounded in a belief that the Court does what it is supposed to do — decide cases according to the law.

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...

Oh, bullshit. He's a sideshow because he flinches when hit? He's modestly human and not a mannequin. I remember when Obama expressed a desire for Supreme Court Justices with a more sensitive emotional response. Empathy.

Obama is an elected politician in a political branch and has every right to express his views on such a significant court ruling. While the factual claims Obama made about the ruling are subject to reasonable dispute, they're well within the realm of acceptable political rhetoric and are far from being "false"...

But shouldn't Obama have shown some respect for the members of the third branch of government who honored him with their presence? What is the "acceptable political rhetoric" when one person has the microphone for over an hour and everyone else is supposed to listen respectfully? Really, if it were known in advance that Obama wanted to use the occasion this way, the Supreme Court Justices should have stayed home. Or send over 1 or 2 that do opinions that the big man likes.

While Presidents do not commonly criticize the Court in the SOTU address, it is far from unprecedented either. 

The link goes to Tony Mauro at The Legal Times, who says that this kind of talk is "almost unprecedented." "Almost unprecedented" = "far from unprecedented"? Come on, Glenn. Your sleaziness is showing.

[Alito] unmasked himself as a politicized and intemperate Republican as well. 

Huh? Alito flinched at a surprising jab. The President told the Justices to their face that they were, essentially, power abusers. It's not "Republican" to believe that your work is dutiful and honest. (Is it?) Alito's gestures meant nothing more than that.

Yale Law Professor Jack Balkin documents that roughly 25% of Franklin Roosevelt's 1937 State of the Union address was devoted to criticizing the Supreme Court and various rulings which struck down his domestic legislation. 

Roosevelt's attack on the Court — quoted by Balkin — was, at the most severe point: "We do not ask the Courts to call non-existent powers into being, but we have a right to expect that conceded powers or those legitimately implied shall be made effective instruments for the common good." Think about how much more respectful that was toward the Court than the blow that made Samuel Alito flinch last night.

Greenwald concludes:

Whatever one thinks of the one paragraph of Obama's address devoted to the Citizens United ruling, it was not "unprecedented."

Who is he quoting there? Balkin doesn't say "unprecedented." Is it Mauro's "almost unprecedented"? For all his annoying verbiage, Greenwald can't get anywhere in this effort to show that Obama was just fine and Alito did something outrageous. Pathetic!

Why the Obama honeymoon ended so abruptly.

"... Obama doesn't grasp the essentials of presidential leadership. Rather than making a compelling case for his economic policies, he has resorted to curt rebuffs, such as telling House Republican whip Eric Cantor, 'I won.' House Speaker Nancy Pelosi said the same thing the same day: 'We won the election; we wrote the [stimulus] bill.' This is the trope of a party that has lost its ability to make an argument. Mr. Obama and his team would be well advised to put aside the imperious FDR model and study Ronald Reagan's first 200 days in office. The contrast is instructive."