Over on Twitter, Jonathan Adler and I have been debating whether there is anything improper to give public comments about cases pending before the Court. (Jonathan provides background in this post, and notes it appears that President Obama talking about the Obamacare case after argument while it is pending is unusual).
Jonathan thinks there is something unseemly or improper about it, citing Larry Tribe’s comments that such comments, even if they don’t influence the Court, can create public cynicism about the process.
I’m skeptical that the President’s comments would do anything to contribute to the already high public cynicism about the political process. The public is already plenty cynical. I don’t think such comments would undermine the legitimacy of the Court. It is not like Justices choosing to speak about pending cases, which raises different issues.
Nor do I believe that such comments would “bully” the Supreme Court into deciding a case in a certain way (an argument I don’t think Jonathan is making, but which plenty of people made before the last Obamacare argument, where there was a full Court press to buck up Chief Justice Roberts’ in conservative opinion columns—an effort which did not work). The Court is a co-equal branch of government, and can take it.
So that’s the reason not to oppose the President speaking on cases pending before SCOTUS. What’s the affirmative case to speak?
The public knows woefully little about the workings on the Supreme Court (a problem in part of the Court’s own making and desire). On the most controversial cases, it is fair to say the Court is making policy, not deciding abstract issues of law. 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.
So the impulse was right to call out SCOTUS in the state of the union on Citizens United. The problem was not that the President addressed the issue but that he made incorrect statements about the effect of the decision.
We need more attention to the controversial opinions of the Court. And the President is an important person to bring such attention.
UPDATE: In an update to Jonathan’s post, he says his issue is timing. He writes: “My concern, like that expressed by Professor Tribe above, is about the nature and timing of Presidential comments.” I don’t think timing matters, if one takes the position, as I do, that timing neither undermines public confidence nor the legitimacy of the Court, and believes that the President cannot bully the Justices. Why shouldn’t people know that the Supreme Court might do something outrageous (as in taking away millions of people’s healthcare in the King v. Burwell case–that last little bit was especially for Jonathan, with a smiling emoji).