U.S Supreme Court Remarks Set President Obama’s Apart

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WASHINGTON—On Monday among presidents in modern times, Barack Obama stands apart in the force of his remarks on Supreme Court cases, a soon-to-be published article in Presidential Studies Quarterly concluded.

Mr. Obama added a new data point, saying at a news conference that “under well-established precedent, there is no reason” the administration should lose a challenge to the Affordable Care Act pending before the court.

“This should be an easy case,” he said. “Frankly, it probably shouldn’t even have been taken up,” Mr. Obama added, making an implied criticism of at least four justices, the number needed to put a case on the docket.

“It’s not unheard of for presidents to take positions on cases before they are decided, but what makes Obama’s remarks stand out is that they are bolder and more extensive than what most presidents have said in the past,” said Paul Collins, a political scientist at the University of Massachusetts, Amherst, and co-author of the article, “Presidential Rhetoric and Supreme Court Decisions.” The White House didn’t immediately respond to a request for comment.

On most occasions, presidents have only briefly noted the existence of a Supreme Court case. Mr. Obama, who taught law at the University of Chicago, has tended to go further, Mr. Collins and his co-author, University of North Texas professor Matthew found Eshbaugh-Soha.

“Most of the statements that presidents make tend to be a sentence or two or three sentences,” Mr. Collins said, adding that Mr. Obama on Monday “went on for 3½ minutes by my count, and he didn’t mince words.”

White House spokesman Josh Earnest responded to questions Tuesday about Mr. Obama’s decision to address the pending health-care case. “It’s a pretty straightforward reading of the law in the mind of the president and in the mind of many,” Mr. Earnest said. “That’s why the president indicated that he was optimistic about the outcome.”

Mr. Obama also spoke on a pending case on health-care law in 2012, when he forecast the court would uphold the law and called overturning it judicial overreach. “For years, what we’ve heard is the biggest problem on the bench was judicial activism or the lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law,” he said in April 2012. “And I’m pretty confident that this court will recognize that and not take that step.”

While there have been about 50 instances between 1953 and 2012 when presidents have mentioned pending cases, Mr. Collins said most presidential commentary has concerned decisions after they are announced. There are good reasons for that, he said.

When presidents discuss pending litigation, “they are violating this very strong norm of judicial independence, that presidents and other political actors shouldn’t get involved” when the court is deliberating, Mr. Collins said. “It’s not done.” The president also has no need to lobby the justices the way he might exhort Congress or rally the public, because he has a full-time advocate, the solicitor general, who represents the administration’s position before the court, he added. Presidential commentary on pending cases has proved remarkably ineffective.

In a June 5, 1976, interview, President Gerald Ford told CBS News that parents should be able to send their children to whites-only private schools. “Individuals have a right where they are willing to make the choice themselves and there are no taxpayer funds involved,” Mr. Ford said.

The Supreme Court disagreed, ruling on June 25 that such discrimination was a “classic violation” of the Civil Rights Act of 1866.

In 1989 and 1992, while abortion cases were pending, President George H.W. Bush expressed hope the court would overrule Roe v. Wade, the 1973 decision recognizing abortion rights.

The court has yet to do so. In January 2003, President George W. Bush called on the court to rule against separate affirmative-action programs at the University of Michigan’s undergraduate college and law school. “The Michigan policies amount to a quota system that unfairly rewards or penalizes prospective students, based solely on their race,” he said.

Mr. Bush batted .500. The following June, the justices threw out the undergraduate admissions formula but upheld the law school’s version.

“One of the feelings that Matt and I have is that they might be doing it for cases they recognize are at risk, so it could be that Obama is getting nervous,” Mr. Collins said. “One way this could benefit him if his side loses is that it at least makes the public understand that there’s another perspective to illuminate the statute.”