Home / General / Does the President Criticizing the Court Threaten Judicial Independence? (SPOILER: No.)

Does the President Criticizing the Court Threaten Judicial Independence? (SPOILER: No.)



Maybe the person who orders the pizza for meetings of the Spokane Democratic Party is out of town, because I’ve been promoted to the Very Face of the Left Today:

If you do what McLaughlin obviously didn’t do and give at least a cursory look at the text of the article in question, you will see that in fact my argument is that the assertion that Obama is “bullying the Court” is asinine. But even if you don’t, the scare quotes around bully should probably tell you something.

To move on to a marginally more serious argument, the Good Cop of the legal war against the ACA joins the chorus criticizing Obama for his remarks. He points us to this discussion by Jess Bravin of a recent study about presidential rhetoric and the Court. One thing that is clear Obama’s actions are not unprecedented. George H.W. Bush apparently already destroyed judicial indpendence (sic) by uring the Court to overrule Roe before both Webster and Casey. Obama does seem to have mentioned pending cases more often than any other president since Eisenhower, but since none of these presidents have seen the centerpiece legislation face the kind of sustained legal attack that the ACA has faced I don’t think this tells us much of anything.

Adler argues that the only problem is with the precise timing of Obama’s comments:

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.

The prosciutto is getting to be nearly translucent. There’s nothing wrong with presidents making their views about the merits of a case clear ex ante, there’s nothing wrong with them making their views clear after a decision is being handed down, but there is something wrong with reiterating their views between oral argument and the decision being handed down.  One of the authors of the study asserts to Bravin that Obama was violating a “very strong norm of judicial independence,” but..how? Unless the president says that he won’t obey an unfavorable decision — Nixon’s comment that he would only obey a “definitive” decision in the tapes case being a classic example — I frankly have no idea. Aware that his attempt to confine his critique to the specific timing of Obama’s comments may seem awfully convenient, Adler attempts an analogy to Bush and Boumediene. I don’t think a case involving an individual being detained is the best analogy to King, but even so I don’t think there would be anything procedurally illegitimate about Bush saying that the Court shouldn’t have taken the case between oral argument and the decision being handed down. After all, we knew that was his position anyway.

I do think one mistake the study makes is to assume that is the president speaks between oral argument and the handing down of the opinion, then the justices must be the intended audience. But at least in this case, I think this is almost certainly wrong. The conference vote in this case was three months ago. The chances that Obama’s remarks would cause a justice to switch their vote a couple weeks before the end of term are nil, and Obama knows this (indeed, if he thought they would have a chance of affecting the outcome he probably would have known better than to say anything.) His audience was the media and the public, not the Court.

And I think Adler knows this:

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.”

Let me get this straight. Someone who is not only an architect of the King litigation but has advanced a particularly implausible and ahistorical interpretation of the statute is citing eventheliberal Laurence Tribe on behalf of the proposition that Obama is “contribut[ing] to an atmosphere of public cynicism.” I can’t even. But I think that’s the real issue here. Evidently, it’s in the interest of the ACA’s opponents to portray this as a technical legal dispute, with the public hopefully ignoring the fact that this litigation is the product of political opposition to the statute. Obama’s comments help to dispel this illusion, which is why the ACA’s opponents don’t want him to talk about it.

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