New Commentary at National Constitution Center Blog: President Obama’s Comments about SCOTUS Are Unprecedented

June 17th, 2015

The National Constitution Center published some of my research placing into context President Obama’s recent comments about the Supreme Court. Building on a study by Eshbaugh-Soha and Paul M. Collins, Jr. analyzing presidential rhetoric about SCOTUS going back to Eisenhower, I calculated how close in time the statements were to the oral arguments and decision day.

Presidents have mentioned 850 Supreme Court cases in their public remarks. However, only on 47 occasions have the remarks concerned pending cases, 13 of which were made after arguments when the case was submitted. The authors concluded that while it is “not unheard of for presidents to take positions on cases before they are decided . . . what makes Obama’s remarks stand out is that they are bolder and more extensive than what most presidents have said in the past.”

By far, President Obama has set himself apart by opining on the merits of the case after oral arguments have been submitted, and pre-emptively faulting the Justices if they were to rule against the government. The closest competitor to President Obama is President George H.W. Bush, who commented several times that he favored that Roe v. Wade should be overturned, although he insisted that he would not comment on the merits of a case until after the Supreme Court ruled.


While I do not offer an opinion (here at least) about whether these comments are good or bad, President Obama stands alone, by a long shot, in his comments about pending cases–especially those that directly affect his administration:

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. He has compared the Court invalidating the individual mandate to Lochnerism. He has chastised the Justices for only being able to invalidate the IRS rule based on a “contorted reading of the statute.” To the President, the Court “shouldn’t even have” granted certiorari. Striking down the mandate would have been “unprecedented” and invalidating the IRS Rule would “unravel what’s now been woven into the fabric of America.” While we can debate the propriety of these comments, and ponder whether or not they have an effect on the Court, the 44th President has set a new precedent for ex parte arguments.


You can read all of the presidential statements here.