Last week, President Obama made several comments about the Supreme Court’s pending decision in King v. Burwell, the Obamacare tax subsidies case, chiding the court for taking up the issue and calling it “an easy case.”
But should the president be telling the justices how to rule?
Historically, many presidents have criticized decisions with which they have disagreed, but very few have done so before the court issued its decision. In a recent study, political scientists Matthew Eshbaugh-Soha and Paul M. Collins, Jr., reviewed statements made by presidents throughout the years about Supreme Court cases. They found (unsurprisingly) that “presidents generally refrain from discussing pending cases in their public rhetoric to avoid violating the norm of decisional independence.”
Typically, presidents respect the fact that the judiciary is a separate, co-equal branch of government and that independence from the other branches is essential to a judge’s ability to impartially decide cases based on the law, not politics.
The justices should not take Obama’s comments on King into account in making their decision as this could endanger their institutional independence. Further, Obama’s comments are unnecessary (and inappropriate) since the court is already aware of the administration’s legal position. Solicitor General Donald Verrilli made the president’s position perfectly clear to the court.
So how does Obama compare to other presidents? Though Obama’s recent comments stand out for their brazenness, past presidents occasionally commented on pending cases.
In 1976, just weeks before the court ruled in Runyon v. McCrary that private, whites-only schools constituted unlawful discrimination on the basis of race, President Gerald Ford stated on “Face the Nation” that “the individual ought to have a right to send his daughter or his son to a private school.” When asked if he thought this principle applied to segregated schools as well, Ford responded: “I think in a private school a person ought to have an individual right” but that the issue was before the Supreme Court. He also noted that his administration would “carry out the decisions of the Supreme Court.”
In 1992, one month before the Supreme Court issued its decision in Planned Parenthood v. Casey, President George H. W. Bush was asked if he had “plans to eliminate abortion.” He responded, “[O]f course, this is a matter that is enshrined in law. My position is … publicly stated. And I think the matter now is in the courts … One of the cases before the Supreme Court now relates to whether a parent should be notified if a child … is going to have an abortion. I feel, of course, a parent should be involved. But that matter is being adjudicated in the courts right now.”
Nearly all presidents in recent history refrained from making comments that could be seen as attempting to influence the court. At the National Constitution Center’s Constitution Daily, Josh Blackman provides examples of Carter, Reagan, Clinton and George W. Bush following this model. Blackman concludes that Obama “stands alone in his pointed and directed arguments at the Supreme Court … set[ting] a new precedent for ex parte arguments.”
There is no question that after the Supreme Court has announced its rulings, many presidents have had harsh words for the justices. After the Supreme Court decided Worcester v. Georgia, President Andrew Jackson famously said, “John Marshall has made his decision; now let him enforce it.” In a 1935 press conference following the Schechter Poultry Corp. v. United States decision striking down a major component of the New Deal, President Franklin D. Roosevelt quipped, “[w]e have been relegated to the horse-and-buggy definition of interstate commerce.” (Following this decision, Roosevelt’s conflict with the court culminated with his failed court-packing scheme.)
Obama has chastised the court after it has ruled on many occasions—most notably in his 2010 State of the Union Address when he called out the court for its Citizens United v. Federal Election Commission decision. And this isn’t the first time Obama has taken to his bully pulpit to shame the justices into ruling in his favor.
But even Obama’s own former law professor, the famed constitutional scholar Laurence Tribe, has said that “[p]residents should generally refrain from commenting on pending cases during the process of judicial deliberation. Even if such comments won’t affect the justices … they can contribute to an atmosphere of public cynicism.”
Tribe is right. The Supreme Court must rule based on the law—not politics or fear of public criticism—and outside influence from the president is inappropriate and unwarranted. Obama should climb down from his bully pulpit and leave the Supreme Court to issue its decision.
