“It’s Not What You Said, It’s How You Said It”: Criticizing the Supreme Court in the State of the Union
28 Yale L. & Pol’y Rev. Inter Alia 27
In this Essay, I argue that presidential criticism of the Supreme Court during a State of the Union address (SOTU) is different from other forms and forums of presidential criticism of the Court. This is because the State of the Union is different from other presidential addresses and because the Supreme Court is different from other state and federal courts. The State of the Union is the only address that the President is constitutionally obligated to deliver, and it is one of the few presidential addresses that members of the Court ordinarily attend. It is the only speech at which the three branches of government formally come together in the same place. The Supreme Court is the only court created by the U.S. Constitution, and it is unlike the representative branches of government because its only institutional outlet for articulating its views on matters of law and policy is its written decisions. As a result, a unique constellation of constraints surrounds the presence of the Court at the SOTU: (1) the SOTU is a uniquely significant presidential address because of its constitutional basis; (2) the SOTU is the only presidential address the Court attends in the legislative chamber; (3) the Court attends the SOTU surrounded by members of Congress; and (4) the Court is bound by rules of conduct during and after the SOTU, which do not bind members of Congress or the President.
As a result of these constraints, when a President criticizes the Court at the SOTU, the Court cannot respond directly to these criticisms, inside or outside of the chamber. Moreover, the Supreme Court is unlike other courts because it is the institution the nation historically looks to for resolution of our most divisive political issues. The Court occupies a unique constitutional, institutional, and historical position. The Court occupies this position in part because Presidents and other elected officials have impelled the Court to occupy this position. So it seems especially inequitable and unseemly for a President in Congress to criticize the Court for fulfilling the function that the representative branches of government and the people expect it to fulfill.
I do not suggest that the President—or anyone else—should not criticize the decisions of the Supreme Court, or any other court. But that does not mean that any form of criticism is appropriate. For example, opponents of abortion screaming “baby killer” at a Supreme Court Justice for voting to uphold Roe v. Wade is not, in my view, an appropriate form or forum of criticism of the Court’s decisions. This Essay is not about whether someone supports Barack Obama (or any other President of the United States), and this Essay will not discuss whether the Supreme Court decided Citizens United correctly. In fact, my point here is that someone can support President Obama and disagree with Citizens United and still believe that the SOTU is not the proper forum for a president to criticize the Supreme Court for one of its decisions
I. The State of the Union
It is unusual for a President to mention, let alone criticize, the Supreme Court in a State of the Union address. Presidents have specifically mentioned the Supreme Court in only one quarter (55 out of 219) of the SOTU addresses given to this point in U.S. history. In almost every instance in which a president mentioned the Court in a SOTU, the purpose was either to support one of the Court’s decisions or to urge Congress to adapt the federal courts to the changing needs of an expanding country, primarily by reference to the Court’s overburdened docket, insufficient salaries, and duties riding circuit. Several other references explicitly invoke the perceived institutional integrity of the Court. For example, in his 1848 SOTU, James K. Polk invoked the Court’s authority in an effort to legitimize, by association, the President’s veto power:
The Supreme Court of the United States is invested with the power to declare, and has declared, acts of Congress passed with the concurrence of the Senate, the House of Representatives, and the approval of the President to be unconstitutional and void, and yet none, it is presumed, can be found who will be disposed to strip this highest judicial tribunal under the Constitution of this acknowledged power—a power necessary alike to its independence and the rights of individuals.
Of the fifty-five mentions of the Supreme Court in a State of the Union, in only seven of these did a President specifically criticize one of the Court’s decisions. Prior to President Obama’s 2010 SOTU, the last time a President specifically criticized a decision of the Court in a SOTU was President Theodore Roosevelt in 1907. Surprisingly, even President Franklin Roosevelt—the President who most famously disagreed with the Court about its decisions—never expressly criticized the Court in a SOTU. The closest FDR came was in his 1937 address. Although Roosevelt was impliedly critical of the Court in that speech, he did not single out for criticism the Supreme Court itself or any one of its decisions. Instead, Roosevelt said:
[T]here has been a growing belief that there is little fault to be found with the Constitution of the United States as it stands today. The vital need is not an alteration of our fundamental law, but an increasingly enlightened view with reference to it. Difficulties have grown out of its interpretation; but rightly considered, it can be used as an instrument of progress, and not as a device for prevention of action. . . . With a better understanding of our purposes, and a more intelligent recognition of our needs as a Nation, it is not to be assumed that there will be prolonged failure to bring legislative and judicial action into closer harmony. Means must be found to adapt our legal forms and our judicial interpretation to the actual present national needs of the largest progressive democracy in the modern world.
In retrospect, of course, we recognize in this language FDR’s frustrations with the Court, the impending demise of his plan to “pack” the Court, and the forthcoming shift in the Court’s appraisal of the New Deal’s constitutionality. But the language itself, especially given the context of its delivery, was modulated and respectful. Although the message is plain enough, this is hardly a direct attack on the Court.
No Supreme Court Justice attended Roosevelt’s 1937 SOTU. As Harold Ickes pointed out, their absence presumably was explained by their awareness of the speech’s subject and their desire not to sit in the chamber and listen to members of Congress applaud as the President chided the judiciary. Ickes also noted that it was quite unusual—he believed unprecedented—for “a President of the United States in addressing Congress . . . sharply, even if politely, [to] criticize the judicial branch of the Government.”
Although Roosevelt’s comments in his 1937 SOTU were not unprecedented, they were extraordinary. And the absence of the Justices was understandable. As the only constitutionally mandated presidential address, at which the only constitutionally created Court is typically in attendance, the State of the Union is a unique formal and physical gathering of the three branches of government in one place, at which one individual speaks, the congressional audience responds (usually nonverbally), and one small and clearly delineated segment of the audience sits silently. This is not immaterial. The formal, physical, and symbolic separations of power in Washington were important to the Framers and should not be discounted. The construction of a separate building for the Supreme Court so that it could cease hearing cases in the Old Senate Chamber was a very deliberate effort to define the physical and symbolic distance between the Court and Congress as separate branches of government and to enhance the dignity of the Court as an institution. As the single public event at which the three separate branches of the federal government physically come together, presidential criticism of the Court in a SOTU is unlike any other presidential criticism of the Court.
The Justices’ silence at the SOTU, in the midst of frequent and sometimes raucous reactions by members of Congress in attendance, seems emblematic of their impartiality and their institution’s independence from political influence or partisanship. If nothing else, this neutrality seems to be the basis for the Justices’ behavior and the public’s perception of the Court’s restrained demeanor at the SOTU. Accordingly, the Court’s inability to respond to the President as he criticizes the Court in Congress might lead to public perceptions of the President as bullying the Court, or the Court as impotent in the face of this criticism, or both. Furthermore, for those who find quaint the notion that the Court is independent from partisanship and who view the Justices as politicians in robes, the President’s pointed criticism of the Court during the SOTU might be impolitic for an entirely different reason: The Court may later rule on the constitutionality of initiatives important to the President, such as health care legislation.
II. "The Supreme Court at the Bar of Politics"
This Part draws its title from the subtitle of Alexander Bickel’s famous book, The Least Dangerous Branch. In that work, Bickel recognized, as James Bradley Thayer had before him, that elected representatives often shunt politically contentious or intractable issues to the Court. In doing so, the political branches can avoid considering the constitutionality of the measures they enact and, if those enactments are later determined to be unconstitutional, the representatives pay no political price for the Court’s decisions:
It has been suggested that the Congress, the President, the states, and the people (in the sense of current majorities) have from the beginning and in each generation acquiesced in, and thus consented to, the exercise of judicial review by the Supreme Court. . . . “[T]he exercise of it [the power of judicial review], even when unavoidable, is always attended with a serious evil, namely, that the correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the moral education and stimulus that comes from fighting the question out in the ordinary way, and correcting their own errors.” . . . To this day, in how many hundreds of occasions does Congress enact a measure that it deems expedient, having essayed consideration of its constitutionality . . . only to abandon the attempt in the declared confidence that the Court will correct errors of principle, if any? . . . We cannot know whether, as Thayer believed, our legislatures are what they are because we have judicial review, or whether we have judicial review and consider it necessary because legislatures are what they are.
Then, depending upon what the Court decides, the elected representatives later will criticize the Court when they disagree with its decision.
In the popular mythology of American constitutional law, Dred Scott was the first Supreme Court decision after Marbury in which the Court struck down as unconstitutional a piece of federal legislation. While there are strong arguments that this is incorrect as a reading of the historical record, for purposes of this Essay I want to focus on another aspect of the popular mythology, which reflects a realized fact of American public law and political life. In the five decades after Marbury and before Dred Scott, the elected branches of the United States government and the American people came to see the Court as the institution that could (and should) resolve the most politically intractable issues of the day. And from Dred Scott to the present, the Court has fulfilled that role. Whatever the intractable issue of the day turned out to be—slavery, segregation, abortion, capital punishment, or a presidential election—the Court was asked and expected to resolve politically contentious issues that elected representatives, for whatever reason, were unable or unwilling to settle.
In fulfilling this role, the Court has also, understandably and unsurprisingly, become the target of criticism from whatever group was unhappy with the Court’s rulings. There are two separate points here: The Court’s decision to resolve these issues and the specific decisions the Court reached in doing so. Criticizing the Court for the decisions it reaches is one thing; criticizing the Court for making those decisions in the first place is something else. It seems especially inequitable to impel the Court to resolve these issues for the nation and then to criticize the Court for resolving them. Nevertheless, Bickel and others sometimes criticize the Court on both grounds.
With respect to this sort of criticism, I cannot help but think of the legal principle of estoppel. According to this principle, “where one party has by his representations or his conduct induced the other party to a transaction to give him an advantage” that party cannot later claim an injury as a result of the advantage the other party gave to him. Since the elected branches of government have induced the Court to resolve politically contentious issues, it seems somehow inequitable for the elected branches to claim later that the Court has done something wrong by taking the requested action. Some version of “political estoppel” should, at least, preclude the President from instructing the justices during the SOTU that they should allow the political process to settle these disputes and “not legislate from the bench.”
As with the legal principle, political estoppel concerns correlative notions of reliance and consent. The elected branches have evinced their consent, in various ways, to the Court’s resolution of politically contentious disputes, which often provides a meaningful political benefit to those branches. Moreover, given its institutional position and limitations, the Court must rely on these manifestations of consent when it chooses to resolve these sorts of dispute, because of the necessity for legislative or executive compliance with and enforcement of the Court’s rulings.
The President and Congress have ample institutional avenues to question rulings of the Supreme Court. The President can encourage Congress to enact legislation in response to a Supreme Court decision with which he disagrees. He can discuss his disagreements with the Court in another speech or in another setting, when the Court is not sitting there. And let us not pretend that the prominence of the SOTU as an event—its location, its audience in the chamber and on television—were not factors in President Obama’s decision to criticize the Court on that occasion, rather than somewhere else. But unlike the President and members of Congress, Supreme Court Justices cannot generally respond to criticisms of their decisions. The Court’s participation in institutional dialogue with the President and Congress occurs in its opinions.
The State of the Union is not a dialogue, however. It is a monologue. Since members of the Court are usually in attendance at the SOTU, unlike other presidential addresses, when the President criticizes the Court during the SOTU, these criticisms are directed literally and figuratively right in the Court’s face. Criticizing the Court on that stage deliberately exposes and exploits the intrinsic institutional limitations of the Court, which may have far more lasting negative effects than can be measured in one evening.
U.S. Const. art. II, § 3 (“He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient . . . .”).
U.S. Const. art. III, § 1 (“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”).
See, e.g., Ruth Bader Ginsburg, Informing the Public About the U.S. Supreme Court’s Work, 29 Loy. U. Chi. L.J. 275, 275 (1998) (“The Court speaks primarily through its opinions. It holds no press conferences and its members appear on no talk shows.”).
The fifty-five incidences are: President George Washington (Nov. 6, 1792; Nov. 19, 1794); President James Madison (Dec. 3, 1816); President James Monroe (Dec. 7, 1824); President Andrew Jackson (Dec. 8, 1829; Dec. 1, 1834); President Martin Van Buren (Dec. 3, 1838); President John Tyler (Dec. 7, 1841); President James K. Polk (Dec. 5, 1848); President Franklin Pierce (Dec. 2, 1856); President James Buchanan (Dec. 6, 1858; Dec. 19, 1859; Dec. 3, 1860); President Abraham Lincoln (Dec. 3, 1861); President Andrew Johnson (Dec. 3, 1867); President Ulysses S. Grant (Dec. 6, 1869; Dec. 1, 1873; Dec. 7, 1874); President Rutherford B. Hayes (Dec. 3, 1877; Dec. 2, 1878, Dec. 1, 1879; Dec. 6, 1880); President Chester A. Arthur (Dec. 6, 1881; Dec. 4, 1882; Dec. 4, 1883); President Grover Cleveland (Dec. 8, 1885; Dec. 6, 1886; Dec. 3, 1888; Dec. 4, 1893; Dec. 3, 1894); President Benjamin Harrison (Dec. 3, 1889; Dec. 1, 1890; Dec. 9, 1891); President William McKinley (Dec. 5, 1898; Dec. 3, 1900); President Theodore Roosevelt (Dec. 7, 1903; Dec. 6, 1904; Dec. 5, 1905; Dec. 3, 1906; Dec. 3, 1907; Dec. 8, 1908); President William Howard Taft (Dec. 7, 1909; Dec. 6, 1910; Dec. 5, 1911; Dec. 3, 1912); President Warren G. Harding (Dec. 8, 1922); President Calvin Coolidge (Dec. 6, 1923; Dec. 3, 1924; Dec. 8, 1925; Dec. 7, 1926); President Dwight D. Eisenhower (Feb. 2, 1953); President Richard M. Nixon (Jan. 20, 1972); President Ronald Reagan (Jan. 25, 1988); President George W. Bush (Jan. 31, 2006); President Barack H. Obama (Jan. 27, 2010).
See, e.g., President Benjamin Harrison, Third Annual Message (Dec. 9, 1891) (“I believe it would be possible to constitute a commission, nonpartisan in its membership and composed of patriotic, wise, and impartial men, to whom a consideration of the question of the evils connected with our election system and methods might be committed with a good prospect of securing unanimity in some plan for removing or mitigating those evils. The Constitution would permit the selection of the commission to be vested in the Supreme Court if that method would give the best guaranty of impartiality.”).
President James K. Polk, Fourth Annual Message (Dec. 5, 1848). In this section of his speech, Polk argued against detractors of the veto by claiming that it is as important to the authority and independence of the presidency as judicial review is to the Court. Two other interesting aspects of Polk’s quoted reference to the Court are: (1) the assumption that everyone in Congress and the nation (in 1848) acknowledged the authority of the Court to exercise judicial review; and (2) the statement that the Court had struck down more than one act of Congress during the period after Marbury and before Dred Scott. See infra notes 21-26 and accompanying text.
The seven incidences are President Martin Van Buren, Second Annual Message (Dec. 3, 1838); President Ulysses S. Grant, Fifth Annual Message (Dec. 1, 1873); President Chester A. Arthur, Third Annual Message (Dec. 4, 1883); President Theodore Roosevelt, Fifth Annual Message (Dec. 5, 1905); President Theodore Roosevelt, Sixth Annual Message (Dec. 3, 1906); President Theodore Roosevelt, Seventh Annual Message (Dec. 3, 1907) [hereinafter Seventh Roosevelt Message]; Obama State of the Union, supra note 1.
Seventh Roosevelt Message, supra note 9.
See 2 Harold L. Ickes, The Secret Diary of Harold L. Ickes: The Inside Struggle 1936-1939, at 32 (1954).
See, e.g., Paul Gewirtz, The Pragmatic Passion of Stephen Breyer, 115 Yale L.J. 1675, 1695-96 (2006) (reviewing Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (2005)) (“The attendance of Justices at the State of the Union address, however traditional, certainly produces some awkward moments, since the President’s remarks are often highly political and nowadays members of Congress frequently either stand to cheer or put on sullen expressions for the TV cameras; an attending Justice typically sits benignly, neither cheering nor disapproving.”); Ronald J. Krotoszynski, Jr., On the Danger of Wearing Two Hats: Mistretta and Morrison Revisited, 38 Wm. & Mary L. Rev. 417, 420 n.16 (1997) (“Justice John Marshall Harlan, for example, refused to vote or participate in any electoral activities whatsoever because he believed that such activities undermined the public’s confidence in the impartiality of Article III judges. For similar reasons, Justice Harlan also refused to attend the President’s annual State of the Union Address. To this day, the Justices attending the State of Union Address neither stand nor applaud during the President’s speech.”) (citations omitted).
See Gerhard Casper, Separating Power: Essays on the Founding Period 24-33 (1997).
See, e.g., President William McKinley, Second Annual Message (Dec. 5, 1898) (“In this connection I may likewise refer to the inadequate accommodations provided for the Supreme Court in the Capitol, and suggest the wisdom of making provision for the erection of a separate building for the court and its officers and library upon available ground near the Capitol.”). This point is still important. For many of the same reasons that the U.S. Supreme Court was relocated outside of the Capitol building, the recent reconstitution of the Appellate Committee of the House of Lords as the Supreme Court of the United Kingdom deliberately included the construction of a building (renovation, actually, of the former Middlesex Guildhall) across from the Houses of Parliament for the (newly created and now physically separated) U.K. Supreme Court. See Kay Goodall, Ideas of ‘Representation’ in UK Court Structures, in Building the UK’s New Supreme Court: National and International Perspectives 67, 87 (Andrew Le Sueur ed., 2004); Johan Steyn, The Case for a Supreme Court, 118 L.Q.R. 382, 395, 396 (2002) (“It will be necessary for our Supreme Court to be accommodated outside the House of Lords . . . . [I]n every constitutional democracy, large or small, the Supreme Court is accommodated in a dignified building fit for a co-ordinate branch of government. To accommodate our Supreme Court in an unsuitable building would be a signal to the world that the values of constitutionality, allegiance to the rule of law and equal justice for all are not held in high regard in our country.”).
See, e.g., Leslie B. Dubeck, Note, Understanding “Judicial Lockjaw”: The Debate over Extrajudicial Activity, 82 N.Y.U. L. Rev. 569, 569 (2007) (“In 2006, news coverage of the State of the Union address included an analysis of the behavior of the four Supreme Court Justices in attendance. . . . [T]here is a deep-seated understanding that federal judges are held to a different standard of behavior than their counterparts in the legislative and executive branches.”). News coverage of the 2010 SOTU included analysis of Justice Samuel Alito’s reaction to President Obama’s criticism of the Court. See, e.g., posting of Robert Barnes to 44: Politics and Policy in Obama’s Washington, http://voices.washingtonpost.com/44/2010/01/alito-mouths-not-true-at-oba... (Jan. 27, 2010, 23:58 EST).
For a sustained historical analysis of this topic, see Keith E. Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (2007). Of course, the nature of the Court and of constitutional adjudication means that the Court would decide some politically contentious issues no matter what. See, e.g., Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as National Policy-Maker, 6 J. Pub. L. 279, 281 (1957) (observing that the Court must “choose among controversial alternatives of public policy”). But the Court must resolve some of these questions because the representative branches have not done so.
See, e.g., Jesse H. Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court 334 (1980) (“We have discussed the penchant of politicians . . . to pass difficult and provocative matters to the Court only to respond to an adverse decision . . . with hostility and intimidation.”).
See, e.g., Lawrence Baum, The Supreme Court 21 (10th ed. 2010).
See Mark A. Graber, Dred Scott and the Problem of Constitutional Evil 35-45 (2006); see also President Franklin Pierce, Fourth Annual Message (Dec. 2, 1856) (“In a long series of decisions . . . the Supreme Court of the United States had finally determined this point [whether Congress could legislate on slavery] in every form under which the question could arise, whether as affecting public or private rights—in questions of the public domain, of religion, of navigation, and of servitude.”). Given what would happen in Dred Scott a few months later, Pierce was plainly mistaken in claiming that the Supreme Court had finally determined the point of congressional authority to legislate regarding slavery “in every form under which the question could arise.” Nevertheless, Pierce’s comment speaks to the mood of the time and to the view that the Court should resolve these questions for the nation. For a similar statement of the Court’s perceived role, and an even more breathtakingly inept prognostication (and moral calculation), see President James Buchanan, Third Annual Message to Congress on the State of the Union (Dec. 19, 1859) (“I cordially congratulate you upon the final settlement by the Supreme Court of the United States of the question of slavery in the Territories, which had presented an aspect so truly formidable at the commencement of my Administration. . . . The supreme judicial tribunal of the country, which is a coordinate branch of the Government, has sanctioned and affirmed these principles of constitutional law, so manifestly just in themselves and so well calculated to promote peace and harmony among the States.”).
See Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics 336 (1978) (“[T]he extent of congressional power over slavery in the territories was a constitutional issue that had agitated the country for more than a decade. The issue was legitimately presented to the Supreme Court in the Dred Scott case. . . . The Court, in disposing of the question, did what it had been urged and was expected to do, indeed, what the modern Court is expected to do as a matter of course. To have [left the slavery question undecided] would have been an act of political prudence but of judicial abdication.”). For a more recent example, see Richard A. Posner, Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts 161-62 (2001) (“[I]f, as seems likely, without the Court’s intervention the deadlock would have mushroomed into a genuine crisis, the Court’s refusal to intervene might have prompted the question: what exactly is the Supreme Court good for if it refuses to examine a likely constitutional error that if uncorrected may engender a national crisis? . . . Bush v. Gore may have done less harm to the nation by reducing the Supreme Court’s prestige than it did good by heading off a significant probability of a Presidential selection process that would have undermined the Presidency and embittered American politics more than the decision itself did or is likely to do. Judges unwilling to sacrifice some of their prestige for the greater good of the nation might be thought selfish.”).
See Choper, supra note 20, at 129-40, 156-61.
Bickel argued, of course, that justiciability concepts support the “passive virtue” of allowing the Court to remain removed from politically divisive issues and that the Court should decline to decide these questions more frequently than it does. See Bickel, supra note 19, at 127-56, 169-83.
President George W. Bush, Address Before a Joint Session of the Congress on the State of the Union (Jan. 31, 2006).