JURIST Guest Columnist William G. Ross of Cumberland School of Law, Samford University, says that although a president should naturally be careful to avoid demonstrating disrespect for the Supreme Court, the remarks President Obama recently made about the Court's decision in Citizens United v. Federal Election Commission during the State of the Union address did not in any way derogate judicial independence or encourage any defiance of the Court’s decision….

President Obama’s pungent criticism of a very recent and highly controversial U.S. Supreme Court decision during his State of the Union address last week raises important questions about the proper manner in which a president should express objections to the Court’s decisions. Many Americans, including many Democrats, believe that Obama’s remarks about the Court’s five-to-four January 21 decision invalidating certain limitations on corporate spending in political campaigns were disrespectful to the Court and insensitive to the doctrines of judicial independence and separation of powers, particularly since the Justices were present at the State of the Union address. Considered in context, however, Obama’s remarks were not improper, although they might have been somewhat imprudent.

First, it is important to point out that Obama criticized only one judicial decision, Citizens United v. Federal Election Commission. He did not attack the Court itself or impugn the good faith or motives of any individual justice. Although he objected to the manner in which the Court exercised its power of judicial review in a particular case, he did not express any objection to the Court’s power of judicial review or even remotely imply that he supported any kind of curtailment of the Court’s institutional powers. In contrast with earlier periods of American history, when controversial Supreme Court opinions often provoked calls for abridgment or abolition of the power of judicial review, the adverse reaction to Citizens United has not generated any assault on the Court itself.

To the extent that Obama believes that Citizens United could have baneful consequences for the integrity of American democracy, he appropriately used the “bully pulpit” of a State of the Union address to warn about the decision’s deleterious impact and to call for measures to counteract it. Obama is hardly alone, for his dismay over Citizens United is shared by countless Americans and by many members of Congress, who are trying to formulate legislation that will overcome or at least ameliorate its effects. Indeed, one of the harshest criticisms of the decision originated on the Court itself. Justice Stevens, in a dissent joined by Justices Ginsberg, Breyer, and Sotomayor, warned that the decision “will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process.”

Moreover, Obama’s remarks about Citizens United, which displayed a forthrightness that many of his liberal critics found refreshing, were far from intemperate. Here is what Obama actually said:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well, I don’t think American elections should be bankrolled by America’s most powerful interests, and worse, by foreign entities. They should be decided by the American people, and that’s why I’d urge Democrats and Republicans to pass a bill that helps corrects some of these problems.

Despite the widespread commentary about Obama’s remarks about Citizens United in his State of the Union address, Obama’s far more trenchant remarks on the day on which the Court announced Citizens United have attracted little notice or criticism. In this statement, Obama declared that “With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.” Obama may have felt that he needed to tone down his remarks for the highly formal occasion of the State of the Union address, particularly because the Supreme Court justices were present.

Obama’s words arguably were more moderate than many passages of Stevens’s dissenting opinion. In addition to his warning about “corporate domination of the political process,” Stevens disparaged the Court’s opinion as “a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.”

Although some critics of Obama’s speech contend that Obama lied about the Court’s decision insofar as he alleged that it could permit foreign corporations to bankroll American elections, many lawyers and scholars believe that the decision could have exactly this effect even though the decision technically addressed only a provision of the Bipartisan Campaign Reform Act of 2002 that concerned domestic corporations and even though the decision did not overturn restrictions on direct campaign contributions. The danger of foreign influence would appear to be particularly significant since even many “domestic” corporations actually are owned mostly or largely by foreign interests. Indeed, in his dissent Stevens warned that the decision “would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.” While one might disagree with Obama’s statement about foreign corporations–as did Justice Samuel Alito, who indignantly mouthed “not true” when Obama made this allegation—-it is not fair to say that Obama lied. It also is unfair for some of Obama’s critics to claim that he lied by alleging that Citizens United reversed a century of precedent. Although the decision technically rejected precedents dating back no farther than 1990, Justice Stevens explained in his dissent that “[t]he Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).” If Obama lied, then so did Stevens and the three other dissenters.

There is likewise little basis for objecting to Obama’s criticism of even one individual decision on the basis that any presidential criticism of a judicial decision tends to discredit the Court and hinder the enforcement of its decisions. Obama’s criticism of Citizens United does not create such a danger, although this kind of a threat could arise in other types of cases. Since the Court–as Alexander Hamilton famously pointed out in No. 78 of The Federalist–has neither the power of the purse nor the power of the sword, it is dependent upon the goodwill of the executive and legislative branches of the federal and state governments and of the American people for the enforcement of its decisions. A president therefore should be particularly careful about criticizing any decision that could encounter widespread defiance.

For example, enforcement of the Supreme Court’s controversial decisions during the 1960s expanding the procedural rights of criminal defen
dants depended upon compliance by countless police officers and state judges. Although there is no indication that Lyndon Johnson opposed these decisions, any criticism by him of decisions such as Miranda v. Arizona (1966) while he was president could have encouraged law enforcement officials to ignore, evade, or even defy the Supreme Court’s rulings. Similarly, the Supreme Court’s widely unpopular decision barring prayer in public school, Engel v. Vitale (1962), required compliance by tens of thousands of schools and hundreds of thousands of teachers. The decision was difficult to enforce, and at least some schools ignore it even today. President Kennedy was wise to publicly urge respect for the decision, explaining to its opponents that there was an “easy remedy” insofar as “we can pray a good deal more at home, we can attend our churches with a good deal more fidelity, and we can make the true meaning of prayer much more important in the lives of our children.” Likewise, the Supreme Court’s principal school desegregation decision, Brown v. Education (1954), required the goodwill of countless parents and compliance by a wide array of school boards, state legislators, and governors. President Eisenhower, who had severe misgivings about Brown, has been criticized for making public endorsements of the decision that were so lukewarm and ambiguous that they may have discouraged compliance. Efforts to compel public officials to comply with Brown often required costly and protracted litigation by civil rights groups that had difficulty financing such litigation. Similarly, the costs of efforts to enforce Engel or the Court’s criminal procedure decisions would have had to have been borne in many cases by under-financed religious minorities or impoverished criminal defendants.

In stark contrast to these earlier cases, Citizens United is not a decision that the Supreme Court should have any difficulty enforcing. The Federal Elections Commission is the only agency that could directly frustrate the Court’s decision, and any attempt by the Commission to try to enjoin the types of activity permitted by the Court’s decision would attract widespread public attention and provoke litigation by well financed corporations.

Finally, complaints about Obama’s criticism of Citizens United are misplaced to the extent that they underestimate the extent to which previous presidents have criticized the Court and its decisions. Although presidents usually have been circumspect about making public comments concerning Supreme Court decisions, presidential criticism of such decisions has been far from unknown. In 1989, for example, President George Bush advocated a constitutional amendment to overturn the Court’s decision in Texas v. Johnson, which nullified a state statute that criminalized flag burning. Although Bush signed a federal statute to criminalize flag burning, he continued to express preference for a constitutional amendment. When the Court two years later invalidated a similar federal law in United States v. Eichman, Bush immediately advocated another constitutional amendment.

Presidential criticism of the Court’s decisions probably would be even more common if presidents had not so often agreed with the outcome of decisions or had not believed that criticism could offend important blocs of voters. Franklin D. Roosevelt, for example, generally refrained from criticism of the Court after the Court during 1935 and 1936 nullified several of his New Deal measures because he feared that such criticism could backfire. In a press conference in 1935, he complained that the Court’s decisions were relics of the “horse and buggy definition of interstate commerce,” but he otherwise was silent until early in 1937, when his Court-packing proposal and his harsh remarks about the Court inspired widespread disapproval that culminated in congressional rejection of his plan to add up to six justices to the Court.

Although Obama’s criticism of Citizens United in his State of the Union address probably is the strongest statement that a president ever has made about a recent Supreme Court decision in any State of the Union speech, other presidents have used the State of Union to make points about judicial decisions. As recently as 2004, President Bush tacitly criticized the Supreme Judicial Court of Massachusetts’s recent decision on same-sex marriage, alleging that “activist judges have begun redefining marriage by court order, without regard for the will of the people and their elected representatives.” Bush implied that he supported a constitutional amendment to overturn the decision. Although President Reagan never mentioned Roe v. Wade by name or directly criticized the Supreme Court in his State of the Union addresses, he impliedly criticized Roe in his 1984 and 1986 addresses. In his 1988 State of the Union speech, Reagan advocated a constitutional amendment to allow prayer in public schools, but he did not specifically refer to Engel v. Vitale or any other Court’s school prayer decisions. In 1922, President Harding called for an amendment to restrict child labor which would have had the effect of overturning the Court’s decisions in Hammer v. Dagenhart (1918) and Bailey v. Drexel Furniture (1922), although Harding did not mention these decisions or the Court by name.

Until Obama’s speech last week, perhaps the most piquant remark concerning the U.S. Supreme Court in any State of the Union message was made by Franklin D. Roosevelt in January 1937, only a few weeks before he announced his infamous Court-packing proposal. Roosevelt expressed hope that “we can meet new national needs with new laws consistent with an historic constitutional framework clearly intended to receive liberal and not narrow interpretation.” Implying that he opposed constitutional amendments but would work for some other method to ensure judicial approval of economic regulatory legislation, Roosevelt declared that “[t]he vital need is not an alteration of our fundamental law, but an increasingly enlightened view with reference to it,” and that “[m]eans must be found to adapt our legal forms and our judicial interpretation to the actual present needs of the largest progressive democracy in the world.” The Justices were absent from this State Union address, even though Roosevelt had expected them to attend. Secretary of the Interior Harold L. Ickes speculated in his diary that they stayed away because they had "received a tip as to the contents of the message".

Theodore Roosevelt, however, holds the record for criticism of courts in State of the Union addresses. In his 1906 and 1908 State of the Union addresses, Roosevelt made extensive and stinging remarks about state and federal judges who invalidated economic regulatory legislation and who issued injunctions against the legitimate activities of labor unions. In his 1908 address, Roosevelt declared that “[j]udges of this stamp do lasting harm by their decisions because they convince poor men in need of protection that the courts of the land are profoundly ignorant of and out of sympathy with their needs.” Similarly, in his 1906 address, Roosevelt complained about “flagrant wrongs committed by judges in connection with disputes.” In both addresses, in which Roosevelt devoted thousands of words to discussing judicial issues, Roosevelt professed strong respect for the majority of state and federal judges and for judicial independence, but he warned that the continuation of strong judicial institutions required a wise exercise of judicial power that elevated the rule of law over special interests.

Roosevelt did not make these remarks in front of any judges because State of the Union addresses were not delivered in person between 1801 and 1913. Much of the criticism of Obama’s remarks last week are based not on what he said but on where he said it. Many critics of Obama’s remarks about Citizens United complain that Obama was unfair to the Co
urt to the extent that the justices had no immediate way to respond, other than in the ill-advised manner used by Alito. But while extrajudicial comments by judges about their own decisions are inappropriate, there are plenty of lawyers, journalists, scholars, and pundits who can defend the Court’s opinions. Although a president naturally should be careful to avoid demonstrating any disrespect for the Court, particularly when the justices are present, Obama’s remarks in his State of the Union address were limited to only one case and did not in any way derogate judicial independence or encourage any defiance of the Court’s decision. Indeed, such measured criticism of the Court can actually enhance public respect for the judiciary. As Theodore Roosevelt observed in his 1906 State of the Union address, “just and temperate criticism” of the judiciary helps to prevent “that intemperate antagonism towards the judiciary which…if it became widespread among the people…would constitute a dire menace to the Republic.”

William G. Ross is a professor of law at the Cumberland School of Law of Samford University. His publications include several studies of political controversies involving the U.S. Supreme Court. His website is williamgeorgeross.com.
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