In recent weeks, I’ve adopted a new wake-up habit. As I open my eyes, and turn off my alarm, I see that President Trump has tweeted in the early hours of the morning. Today, his tweet hit close to something I’ve writtene a bit about: Presidents criticizing courts.

Trump’s rant about the decision being “ridiculous” is par for his usual bluster. Indeed, the White House’s initial statement called the decision “outrageous,” but that was immediately pared back. The bit about it being overturned is not dissimilar to the Justice Department’s decision to appeal the case, and seek an emergency stay.

What really caused the outrage was Trump’s charge that Judge Robart was a “so-called judge.” As a constitutional matter, the Bush 43 appointee was unanimously confirmed. He is, without question, and Article III judge. But the import of Trump’s comment was that because of his “ridiculous” ruling, the judge was somehow not legitimate. This a common tact from Trump. He lost certain primaries because they were rigged. He lost the popular vote because of illegal votes. Etc. Everything that goes against him must be because of some factors exogenous to the rules.

Here, his comments are once again directed at a judge. Over the summer, he ignorantly charged that Judge Curiel ruled against him because he was Mexican. These shameful and dangerous comments struck at the heart of our independent judiciary, and I roundly criticized them on my blog and in the Associated Press.

Trump, however, is not alone in calling into question the legitimacy of judicial decisions. I dedicate an entire chapter in Unraveled to incidents where Presidents have opined about Supreme Court cases while they are pending. The leading offender in modern history was, unsurprisingly, President Obama. I summarized my findings in a post at the National Constitution Center blog. Here is the (extended) discussion from Unraveled.

NFIB v. Sebelius was argued on March 26, 27, and 28, 2012, stretching Monday through Wednesday. The justices held their conference on Friday, March 30, to vote on the outcome. The following Monday, April 2, during a press conference, President Obama explained the high stakes of the case. He began by assuring us that he is “confident that the Supreme Court will uphold the law” because “in accordance with precedent out there, it’s constitutional.” His initial sentiment is consistent with how the forty-first and forty-second presidents addressed questions about submitted cases.

But he went further: “I think it’s important – because I watched some of the commentary last week – to remind people that this is not an abstract argument.” Putting a face on the case, so it is not viewed as theoretical, the president added, “People’s lives are affected by the lack of availability of health care … The law that’s already in place has already given 2.5 million young people health care that wouldn’t otherwise have it.” He stressed that the “Justices should understand that in the absence of  an individual mandate, you cannot have a mechanism to ensure that people with pre-existing conditions can actually get health care.” This could be seen as keeping with the forty-third president’s remarks, stressing that, “[ w] e’re at war with an enemy, and we’ve got to protect ourselves” while the detainee cases were pending.

But then he went even further than his predecessors when he said it would be “unprecedented” for the Court to invalidate the law: “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” Obama charged with hypocrisy “conservative commentators that for years” argued that the “biggest problem on the bench was judicial activism or a lack of judicial restraint.” The president hoped that “this Court will recognize that and not take that step.”

The very next day, on Tuesday, April 3, the president offered extensive comments in response to a question about whether it “would be unprecedented for a Supreme Court to overturn laws passed by an elected Congress.” He began with what is the normal trope concerning judicial review: “The Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it.” Then came the but: “[ B] ut it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress.” To drive the point home, President Obama invoked the jurisprudential bogeyman of Lochner v. New York, a case that has come to epitomize an era when a conservative Supreme Court invalidated progressive laws: “We have not seen a Court overturn a law that was passed by Congress on a[ n] economic issue … at least since Lochner. Right? So we’re going back to the thirties, pre– New Deal.” 5

Next, the president issued a series of admonitions to the Court. He “expect[ s] the Supreme Court actually to recognize that and to abide by well-established precedents out there.” Further, he has “enormous confidence” that “the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has.” He added, “So I don’t anticipate the Court striking this down. I think they take their responsibilities very seriously.” Toward the end – in a preview of his remarks in 2015 – President Obama explained that “as a consequence” of his prediction of the outcome of the case, “we’re not spending a whole bunch of time planning for contingencies.” In another foresight of his 2015 comments, the president said that “there is a human element to this that everybody has to remember. This is not an abstract exercise.” These are the most pointed and provocative comments identified in Professors Eshbaugh-Soha and Collins’s 2014 study.

While President Obama would not offer similar comments during the run-up to Hobby Lobby, he shattered his own record in the months and weeks before King v. Burwell was decided. On March 2, 2014 – two days before oral arguments – President Obama gave an interview with Reuters where he said, “In our view, [there was] not a plausible legal basis for striking [the IRS rule] down.” 6 He added, “Look, this should be a pretty straightforward case of statutory interpretation. If you look at the law, if you look at the testimony of those who are involved in the law, including some of the opponents of the law, the understanding was that people who joined a federal exchange were going to be able to access tax credits just like if they went through a state exchange.” Reuters asked if the president had a “Plan B” if the Court ruled against him. Obama concluded with a preemptive strike against an unfavorable decision: “If they rule against us, we’ll have to take a look at what our options are. But I’m not going to anticipate that. I’m not going to anticipate bad law.” The president made similar remarks during an April 8 interview on CNN with Dr. Sanjay Gupta. 7 “If you read the statute, it’s pretty straightforward and it’s pretty clear. So I’m not anticipating the Supreme Court would make such a bad decision.” Again, a decision against him was pre-emptively labelled bad. He added in another interview, “I’m confident in the Supreme Court applying its own rules of interpreting laws [and] will uphold the law. It’s pretty clear cut.” 8

The president also targeted the lawyers who brought this case, saying, “I think this is sort of the last gasp of folks who’ve been fighting against this for ideological reasons.” 9 Obama continued, “If the Supreme Court made a ruling that said the folks who have federal exchanges don’t get the tax credits, what you would end up seeing is millions of people losing their health insurance.” Further, he said, “I don’t think the Supreme Court is going to adopt the arguments of those who are arguing” that subsidies are unavailable on the federal exchange. 10 He noted that he receives “letters every day from people who say … the Affordable Care Act saved my life, or saved my kid’s life because I got insurance. We hear stories about that all the time and I think that will be factored in when the Supreme Court takes a look at this case.”

The president made clear that the Supreme Court would be responsible for people losing their insurance, rather than even entertaining the possibility that the IRS Rule was not authorized by the statute. This philosophy pervaded the Obama administration. A DOJ official familiar with the solicitor general’s strategy explained that another purpose of Verrilli’s “this Congress” remark was “to convey that the Court was on the hook for this. It would be the Court’s decision that extinguished the subsidies. The ‘quip’ was a way of conveying the point that the Court has to take responsibility as an institution for the consequence of that reading.”

On June 8 – 96 days after oral arguments in King v. Burwell, and roughly three weeks before the case would be decided – the president offered more than 600 words about the pending case from the podium of the G7 Summit in Krün, Germany. These remarks are longer and more detailed than any statements identified by Professors Eshbaugh-Soha and Collins’s. Mirroring his comments three years earlier, the president said “that under well-established precedent, there is no reason why the existing exchanges should be overturned through a court case.” Once again, then came the but. “Frankly, [the case] probably shouldn’t even have been taken up.” In other words, the president’s faulted the Court – or at least four justices – for voting to grant certiorari. I could not find any other statement where a president criticized the justices for voting to review a case.

He then turned to the real-world consequences of the Court basing its decision on “a contorted reading of the statute … It means that millions of people who are obtaining insurance currently with subsidies suddenly aren’t getting those subsidies; many of them can’t afford it; they pull out.” Making the point clearly, he said invalidating the IRS rule is “a bad idea. It’s not something that should be done based on a twisted interpretation of four words” in a 3,000-page statute. Driving the point home after a question of what his “Plan B” is if he loses, the president said, “If somebody does something that doesn’t make any sense, then it’s hard to fix.” At this point, the “somebody” referred to the justices voting to invalidate the rule. He concluded that he was “optimistic that the Supreme Court will play it straight when it comes to the interpretation.”

The very next day the president spoke at length about the affordable care Act (ACA) in a prepared a speech before the Catholic Health Association Conference. Although he did not mention King v. Burwell directly, he alluded to the pending decision: “It seems so cynical to want to take coverage away from millions of people; to take care away from people who need it the most; to punish millions with higher costs of care and unravel what’s now been woven into the fabric of America. And that kind of cynicism flies in the face of our history.” 11 Russell Berman wrote in the Atlantic that the unraveled comment “seemed most directed at lawmakers in the Capitol and the justices on the Supreme Court.” 12 If the message was directed at Congress, however, “Obama could easily have waited a few weeks to deliver the speech, if he needed to give it at all. But Obama apparently wanted to begin mounting his case now – and, perhaps, sway any justice who might be having last-minute doubts.”

“Five years in, what we are talking about it is no longer just a law,” the president continued. “It’s no longer just a theory. This isn’t even just about the Affordable Care Act or Obamacare … This is now part of the fabric of how we care for one another.” His comments suggest that not even the Supreme Court should mess with the ACA, as it is “no longer just a law” but something greater. Finally, on June 11, the president added one more message to the justices: “One of the things I try to remind people of – what we do here, what the Supreme Court does, what Congress does – these aren’t just abstractions. These are things that really matter in people’s lives.” 13

Here is the analysis:

Very few presidents have spoken about pending Supreme Court cases after arguments were submitted. Even fewer discussed the merits of the cases. Only a handful could be seen as pre-emptively faulting the justices for ruling against the government. President Obama, however, stands alone in his pointed and directed arguments to the Supreme Court. The forty-fourth president, himself a former constitutional law lecturer, has set a new precedent for ex parte arguments to the Supreme Court.

Court watchers questioned the propriety of these statements. Robert Barnes, who serves as the Washington Post’s SCOTUS reporter, admitted, “I was a little surprised President Obama weighed in again this week, saying the Court probably should not have taken the case.” 14 Tom Goldstein, appellate attorney and publisher of SCOTUSBlog, said the speech “has the real chance to backfire. The justices really don’t like being pressured into something. You start jumping up and down at them and the justices get their backs up.” 15

Supporters of the plaintiffs charged the president was trying to intimidate the justices. “Instead of bullying the Supreme Court,” noted Senator John Barrasso, “the president should spend his time preparing for the reality that the court may soon rule against his decision to illegally issue tax penalties and subsidies on Americans in two-thirds of the country.” Michael Cannon wrote, “Today the president delivered a speech designed to cow the Supreme Court Justices into turning a blind eye to the law.” Jonathan Adler added, “Presidential reticence about discussing pending cases during judicial deliberations is a sensible convention, and I see no good reason to violate it.” 16 The Wall Street Journal editorial board exclaimed, “Mr. Obama must know that it does him no good to lacerate the Justices in public if he’s trying to influence them to come his way.” They closed with idle speculation: “Could it be that legal sources are telling Mr. Obama that he’s about to lose, so he is now beginning to prepare the public for an all-out assault on the Court and Republicans?” 17

Others defended the president’s statements. Walter Dellinger, who served as the acting solicitor general under President Clinton, dismissed the relevance of the comments: “The Justices’ life tenure secures their independence. There is no reason that issues before the court should be fenced off from public debate.” 18 U.C. Irvine law professor Rick Hasen made the point more explicitly – the president should opine on these issue: “By speaking about the issues, the President who has the bully pulpit educates the public on the importance of the Supreme Court, the power that they hold and, in appropriate cases, disagreement with what the Court has done or is likely to do.” 19 Dana Milbank praised the president’s signal to the Court, which he summed up as “You wouldn’t dare.” Milbank explained that Obama’s threat was directed to “five men not in the room: the conservative justices of the Supreme Court, who in the next 21 days will declare whether they are invalidating the most far-reaching legislation in at least a generation because of one vague clause tucked in its 2,000 pages.” 20

It is impossible to know whether Obama’s remarks had any impact on the justices. Supreme Court reporter Lyle Denniston observed three years earlier, “Only [the Justices] will know, though, whether they thought it was appropriate for the President to give them a piece of legal and constitutional advice even as they were studying the issues” 21

President Obama’s comments, though far more artfully phrased that Trump’s, conveyed a similar message: if the Court ruled against the government in NFIB v. Sebelius or King v. Burwell, it would not be because of the law, but some sort of illegitimacy. I offer this analysis in the Epilogue:

President Obama, through his statements made while the ACA cases were pending, injected a new degree of politics into already highly charged cases. (See our discussion in Chapter 27.) On April 2, 2012, days after NFIB v. Sebelius was argued, Obama said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” The next day, Obama repeated that it “would be unprecedented for a Supreme Court to overturn laws passed by an elected Congress.” The president added that he had “enormous confidence” that “that the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has.”

While many critics accused the president of intimidating the Court, and the chief justice in particular, 14 I think his remarks had a very different effect. He prejudged any decision against ACA as being motivated only by nonlegal considerations: invalidating the mandate would be reckless, rather than careful jurisprudence. That is, there can be no sound, neutral principle on which the individual mandate was unconstitutional. Reasonable minds can and do differ on difficult constitutional questions, but the president’s remarks discredit that debate.

Fast-forward to 2015 and King v. Burwell. The president said there was “not a plausible legal basis for striking [the IRS rule] down,” and he was “not going to anticipate bad law.” He continued, “If the Supreme Court made a ruling that said the folks who [use] federal exchanges don’t get the tax credits, what you would end up seeing is millions of people losing their health insurance.” If the justices determined that the plain text of the statute did not permit subsidies on the federal exchange, according to the president, they would now bear the blame of people losing their health insurance. In later remarks, after the case was argued, Obama said he was “optimistic that the Supreme Court will play it straight when it comes to the interpretation.” The implication is that a ruling against the government would not be straight – that is, crooked, or to borrow a favorite catchphrase from the vernacular of Donald J. Trump, rigged. 15 The president’s decision to target the court, personalize it against the justices, and preemptively polarize their decision delegitimizes this independent branch of government.

Let me repeat the last two sentences again. I wrote them months ago, but they seem especially prescient now.

The implication is that a ruling against the government would not be straight – that is, crooked, or to borrow a favorite catchphrase from the vernacular of Donald J. Trump, rigged. 15 The president’s decision to target the court, personalize it against the justices, and preemptively polarize their decision delegitimizes this independent branch of government.

It is wrong when Trump does it. It was wrong when Obama did it.

In closing, President Trump has glorified Andrew Jackson, often comparing his populist presidency to that of Old Hickory. Trump has even placed a portrait of Jackson in the Oval Office. Perhaps this should bring to mind Chief Justice Marshall’s decision in Worcester v. Georgia, of which Jackson purportedly said “John Marshall made his decision; now let him enforce it.” This statement is almost certainly apocryphal–as the case did not directly involve the U.S. government–but the sentiment persists.

Update: Also my discussion of the same incident from my first book, Unprecedented is on point:

On Monday, April 2, 2012, five days after the arguments— and three days after the Court’s all-important conference on March 30, 2012, when the votes were cast— President Obama made some off-the-cuff comments to the press about the case. Obama said that it would be “unprecedented” for unelected judges to overturn an act of Congress enacted with popular support. Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint— that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step. This statement can be read as calling into question the power of judicial review— that is, the authority of courts to find laws unconstitutional. Professor Andrew Koppelman labeled these “uncharacteristically inarticulate” remarks as “impl[ ying] that judicial review itself was unprecedented.” Obama, a former constitutional law professor, should have been able to do better than this.” However, this was not the import of Obama’s words. Instead, the president was making it clear that he did not see the Supreme Court as a body that should be in the business of striking down popularly enacted laws, especially when no clear precedent compelled such a decision. Of course, Obama’s view was tempered by the vigorous defense his administration provided for the ACA at every level. The former constitutional law lecturer knew quite well that the Court could strike down the ACA within the bounds of the Constitution without reversing any of its precedents, yet he hoped it wouldn’t.

Republicans were outraged by the president’s remarks and accused him of trying to intimidate the justices. Senate Minority Leader Mitch McConnell shot back at Obama: “Only someone who would browbeat the Court during the State of the Union”— referring to the president’s comments about Citizens United—“ and whose administration stifled speech during the health care debate would try to intimidate the Court while it’s deliberating one of the most consequential cases of our time.” McConnell said that “this president’s attempt to intimidate the Supreme Court falls well beyond distasteful politics; it demonstrates a fundamental lack of respect for our system of checks and balances.”

Representative Lamar Smith of Texas was “disappointed” with the president’s comments and noted, “Nothing could be more appropriate for the Supreme Court to decide than whether a bill is constitutional or not. What is unprecedented is . . . the president of the United States trying to intimidate the Supreme Court.” Senator Chuck Grassley added, “President Obama wrongly argued [that] it would be unprecedented for the Supreme Court to strike down a law that a large congressional majority passed. . . . The president of the United States knows better because he is a former constitutional law lecturer.” Senator Orrin Hatch said that it was a “fantasy” to think that “every law you like is constitutional and every Supreme Court decision you don’t is ‘activist.’ . . . Judicial activism or restraint is not measured by which side wins but by whether the Court correctly applied the law.” Mitt Romney chimed in, insisting that striking down the ACA would not be an act of “an activist court— that will be a court following the Constitution.”

McConnell would later tell the Rotary Club of Lexington, Kentucky, that the president “looked at the line that wisely separates the three branches of government and stepped right over it. But what the president did this week went even farther. With his words, he was no longer trying to embarrass the Court after a decision; rather, he tried to intimidate it before a decision has been made. And that should be intolerable to all of us.” While all of the drama was unfolding within the beltway, this presidential versus congressional squabble soon bled over into the third branch of government— the courts. The next morning, on April 3, 2012, Judge Jerry Smith, who sat on the Fifth Circuit Court of Appeals in Houston, Texas, was hearing arguments in a case that involved a provision of the ACA unrelated to the individual mandate.

During oral argument, in an apparent response to the president’s questioning of the power of judicial review, Judge Smith asked a DOJ lawyer if the government agreed that courts could strike down an unconstitutional law. “Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?” Stunned, the lawyer recited that ever since Chief Justice John Marshall’s 1803 opinion in Marbury v. Madison, the courts had this power. Smith was not satisfied with the lawyer’s answer. According to reporter Jan Crawford, Smith was “very stern.”

In a bold move that Professor Andrew Koppelman labeled a “crude political stunt,” Judge Smith ordered Attorney General Eric Holder to personally certify in a three-page, single-spaced letter to the court that he supported the power of judicial review. The judge told the DOJ lawyer, “I would like to have from you by noon on Thursday— that’s about forty-eight hours from now— a letter stating what is the position of the attorney general and the Department of Justice in regard to the recent statements by the president. What is the authority of the federal courts in this regard in terms of judicial review?” Crawford reported that “the other two judges on the panel . . . both Republican appointees— remained silent.”

Mere hours after Smith’s order, the president escalated the tensions by doubling down on a point he had made the previous day. “I have enormous confidence that in looking at this law, not only is it constitutional, but that the court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has.” Now Obama was not merely commenting on the scope of constitutional power but also addressing the Court’s “jurisprudence”— that is, the institutional role of the courts in our tripartite system of government. This is the branch that Alexander Hamilton called in Federalist No. 78, the “least dangerous branch.” Obama was subtly telling the Court to respect its place in our democracy and not to subvert the judgments of the elected branches.

Two days later, Attorney General Holder submitted a letter to Judge Smith, certifying that the “president’s remarks were fully consistent with the principles” of judicial review. In a not-too-subtle jab at Smith, Holder cited the opinions of Judge Sutton from the Sixth Circuit Court of Appeals and Judge Silberman from the D.C. Circuit, both of whom had voted to uphold the ACA. White House spokesman Jay Carney later added, “The president believes that the Supreme Court has the final word on matters of judicial review on the constitutionality of legislation. He would, having been a professor of law.”

 

As well, here is a thread I developed on the topic.

Update 3: President Obama criticized the Court before NFIB v. Sebelius was decided. President Trump criticized the decision after it was made.

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