The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In 2012, President Obama caused a stir with comments about the Supreme Court's pending decision in NFIB v. Sebelius. Many commentators, including some sympathetic to the president and his administration's legal arguments, thought that it was improper for the nation's chief law enforcement officer to make such comments. Harvard's Larry Tribe, for instance, told The Post that "Presidents should generally refrain from commenting on pending cases during the process of judicial deliberation." According to Tribe, who was one of the president's professors in law school and briefly served in the administration, "Even if such comments won't affect the justices a bit, they can contribute to an atmosphere of public cynicism that I know this president laments."
Questions about the propriety of presidential comments about pending Supreme Court cases resurfaced this week after the president spoke about King v. Burwell at a news conference Monday. The president suggested it was an "easy" case that the Court should never have taken. Unsurprisingly, these comments attracted significant attention. (On Tuesday, the President spoke about health-care reform before the Catholic Health Association, but did not directly address King.)
Are such comments common? A Wall Street Journal article by Jess Bravin considers this question and cites a forthcoming paper by two political scientists, Matthew Eshbaugh-Soha and Paul M. Collins, Jr.—that looked at the timing and prevalence of presidential comments about Supreme Court cases. Among other things, the study authors found that presidents comment far more often on already decided cases than on pending ones, and that President Obama has spoken about pending cases more often and more forcefully than his predecessors.
On most occasions, presidents have only briefly noted the existence of a Supreme Court case. Mr. Obama, who taught law at the University of Chicago, has tended to go further, . . .
"Most of the statements that presidents make tend to be a sentence or two or three sentences," Mr. Collins said, adding that Mr. Obama on Monday "went on for 3½ minutes by my count, and he didn't mince words." . . .
From the study:
presidents seldom discuss pending Supreme Court cases, choosing instead to speak about cases after they have been adjudicated. This finding is important because it reveals that presidents do not actively seek to influence judicial decision making through their public commentary. As we argue, this is likely a partial function of presidential deference to the norm of decisional independence, coupled with the ability of the Solicitor General to provide the Court with information regarding the president's preferred policies in legal briefs and during oral arguments. Consequently, instead of trying to influence the outcome of pending decisions, presidents speak most frequently about recently-decided cases during reelection years to help achieve their electoral goals. Presidents also prefer to comment on recent cases when they are salient to the media and the American people, perhaps to maximize their public exposure-and address issues of obvious public concern-when they discuss Supreme Court cases.
While some presidents have commented on pending Supreme Court cases before they were decided, there are relatively few examples of such comments being made during the Supreme Court's deliberations (i.e. between oral argument and a decision being handed down). For instance, Bravin cites comments made by President George W. Bush in 2003 about the cases challenging the University of Michigan's affirmative action programs. Bush's comments were made in January, but the Court did not hear arguments until March. Perhaps more significantly, January 2003 is when the Bush administration filed its amicus briefs in these cases. As readers may recall, there had been much speculation (and some controversy) about what arguments the administration would make in that case. That the president commented at the time to explain his position is not at all surprising—and not at all violative of the principle outlined by Prof. Tribe above.
More from Bravin:
While there have been about 50 instances between 1953 and 2012 when presidents have mentioned pending cases, Mr. Collins said most presidential commentary has concerned decisions after they are announced.
There are good reasons for that, he said.
When presidents discuss pending litigation, "they are violating this very strong norm of judicial independence, that presidents and other political actors shouldn't get involved" when the court is deliberating, Mr. Collins said. "It's not done."
UPDATE: Rick Hasen offers a contrasting view. He thinks that Presidents should speak about Court decisions more often, not less. I don't necessarily disagree with that proposition, stated at that level of generality. My concern, like that expressed by Professor Tribe above, is about the nature and timing of Presidential comments.
I have no problem with Presidents speaking about the courts generally, or about specific decisions (though, like Rick, I would emphasize that the President should be accurate when describing specific decisions). I also think it's perfectly fine for the President to explain why his Administration is adopting a particular position, particularly where an Administration adopts to pursue a new policy, seek reversal of a given precedent, and the like.
Where it seems we disagree is on whether it is appropriate for the President to make comments about what the Court should do while the Court is deliberating about a specific case. This is what provoked concerns from commentators Right and Left when President Obama spoke out about the pending NFIB decision in 2012. Not only did many consider the particular comments to be unseemly, they were quite unconventional. As the research paper cited above shows, prior Presidents have generally refrained from commenting on pending cases. And, it turns out, Presidents have been particularly reticent about commenting about cases during judicial deliberations.
To me, Presidential reticence about discussing pending cases during judicial deliberations is a sensible convention, and I see no go reason to violate it. Increasing public awareness about the Court and its decisions does not require the President to comment during judicial deliberations, and Rick never even suggests otherwise. There is plenty of time for the President to comment when a case is brought, when briefs are filed, and once it is decided. No one, to my knowledge, has ever questioned the propriety of such comments. The question is not whether the President should talk about cases, but whether the President should talk about cases while the Court is deliberating, and I've seen no serious argument that comments during pending judicial deliberations serve much public purpose.
A final little thought experiment: Imagine if President George W. Bush had given a speech in May 2008—shortly before the Supreme Court's decision in Boumediene v. Bush, decrying lawsuits brought on behalf of alleged enemy combatants and Guantanamo detainees. Imagine if, in that speech, he went beyond a general defense of the Administration's national security policies and made comments to the effect that any Court that cared about the nation's security would reject the unprecedented argument that Gitmo detainees were entitled to habeas relief. How should we have felt about that? I, for one, would have been appalled (much as I was appalled at the many scurrilous attacks on attorneys who represented detainees). But perhaps that's just me. YMMV.