In Unprecedented, I focus on how President Obama actively engaged the Supreme Court, even before it decided NFIB v. Sebelius, urging the Court to “exercise its jurisprudence carefully.” A new paper, titled Going Public on Supreme Court Decisions looks at how Presidents have responded to the Supreme Court. Here is the abstract:
Although scholars have long studied why presidents “go public” on a host of topics, no research has specifically investigated presidential statements about Supreme Court cases. To examine this significant issue, we have cataloged the number of times presidents have commented publicly on Supreme Court cases from the Eisenhower to Obama administrations. We posit that presidents discuss judicial decisions primarily to assist in their pursuit of policy and reelection goals, and to enhance their historical legacy. Our empirical findings lend support to our expectations, revealing that reelection years, media attention to the Court’s decisions, and partisanship shape the volume of monthly presidential remarks on Supreme Court cases. Taken as a whole, this research contributes to our understanding of presidential speechmaking, executive-judicial branch interactions, and the methods presidents use to implement Supreme Court decisions.
What I found most interesting is that nearly all the comments occurred *after* the case was decided, and not *before* where it could be seen as an effort to pressure the Court.
Figure 1 presents the number of Supreme Court cases mentioned by presidents. The black bars are the number of cases referenced before they were decided, while the gray bars indicate the number of cases discussed after the opinions were handed down. As this figure illustrates, nearly all of the president’s comments concerning Supreme Court cases occur after the Court has ruled. On only 46 occasions—or 5 percent of the time—has the president mentioned a Supreme Court case prior to a decision. And, although it has become somewhat more common since the Carter Administration for presidents to address cases prior to a ruling, no president has made more than 10 such appeals. Thus, presidents are not going public on Supreme Court cases in a manner consistent with how scholars envision presidents go public on legislation before Congress – to put public pressure on legislators to support the president’s position (Kernell 1997). Rather, they tend to speak about cases for reasons other than attempting to influence the Court. Namely, presidents discuss cases after they have been decided to enhance their electoral and policy goals, in addition to promoting their historical legacy.
Also, the authors noted that the Supreme Court did not factor in prominently to the 2012 Presidential Election. I posit that the Supreme Court would’ve factored greatly, had the Court voted to strike down Obamacare.
This is the conventional wisdom, although the 2012 presidential election did not follow this tendency, as neither Obama nor Romney made much issue of the Supreme Court, whether cases or potential nominees (Barnes 2012).
In fact, Obama spoke about how happy he was with NFIB!
Although Barack Obama most frequently used the campaign trail to mentioned repeatedly his pleasure with the Supreme Court’s decision upholding the Patient Protection and Affordable Care Act in National Federation of Independent Business v. Sebelius, the three most recent Republican presidents—Reagan and both Bushes—most commonly chose to reference Supreme Court cases in written signing statements, often to qualify what they perceived to be congressional overreach on appropriations bills.
I attempted to do a similar study for my book, to place Obama’s comments in context, but I didn’t have the time to adequately develop it. I’m glad to see this paper.