Presidential rhetoric and Supreme Court decisions.

Author:Eshbaugh-Soha, Matthew
Position:Report
 
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At a joint press conference in April of 2012, a reporter asked President Barack Obama to speculate on how the Supreme Court might rule concerning the Patient Protection and Affordable Care Act. Ultimately, the president said, "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress." (1) Whether or not this statement shaped the Court's decision in June to uphold the Act; the president's rhetoric fueled a debate in the popular media about the appropriateness of the president attempting to influence the Court by going public in this manner (e.g., Editorial Board 2012; Hartman 2012). This is so even though the president mentioned National Federation of Independent Business v. Sebelius (2012) on only two occasions prior to the Court's decision. The bulk of the president s attention to this case occurred after the decision, in dozens of stump speeches delivered during the 2012 presidential election campaign.

These remarks are not the only high-profile instance of presidents targeting Supreme Court cases in their public rhetoric. President Obama famously raised concerns about Citizens United v. Federal Election Commission (2010) during his 2010 State of the Union Address and called on Congress to counteract Shelby County v. Holder (2013), the Court's decision to invalidate the preclearance provision of the Voting Rights Act of 1965. George W. Bush publicized his opposition to affirmative action prior to the Court's decisions in Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003). (2) Even 50 years ago, President Johnson praised the Court's decisions in Brown v. Board of Education (1954) and Shelley v. Kraemer (1948) as he encouraged Congress to pass more expansive civil rights legislation. (3)

Despite these examples of presidential speeches referencing Supreme Court cases, we lack a firm understanding of when, how frequently, and why presidents mention Supreme Court cases in their public statements. To date, most going public research that examines the interrelationships between the executive and judicial branches of government focuses on judicial nominations, not Supreme Court cases (Cameron and Park 2011; Holmes 2007, 2008; Johnson and Roberts 2004; Krutz, Fleisher, and Bond 1998; Maltese 1995a). In addition, only limited research shows that presidents increase their public attention to policy issues in response to Supreme Court cases on those issues (Flemming, Wood, and Bohte 1999; see Ura 2014). Moreover, despite the firestorm surrounding President Obama's comments delivered before the Court's ruling in the Sebelius case, we know next to nothing about how frequently presidents speak on pending decisions or whether they focus their public attention on decided cases.

We remedy this state of affairs by investigating the frequency of both written and spoken comments on historic and recently decided Supreme Court decisions. To do this, we have cataloged the number of times per month that presidents mention Supreme Court cases in public comments from the Eisenhower to Obama administrations (1953-2012). We use these data to explore two significant topics. First, we analyze the timing of presidential references to Supreme Court cases to determine whether presidents mention cases pending before the Court or discuss cases after they have been decided. Because we find that presidents speak almost exclusively about Supreme Court cases after they have been decided, our primary research question asks: what explains the frequency of the president's monthly public commentary on decided Supreme Court cases? To answer this question, we build upon research that explains the number of presidential speeches over time (Eshbaugh-Soha 2010; Hager and Sullivan 1994; Kernell 1997; Powell 1999; Ragsdale 1984), which concludes, to varying degrees, that presidents speak publicly to bolster their reelection, historical legacies, and policy goals.

This topic is important for many reasons. First, it expands our understanding of the public presidency to include the Supreme Court. Extant research has largely explained going public either as a means to influence the public (Edwards 2003), media (Peake and Eshbaugh-Soha 2008), or Congress (Canes-Wrone 2001), or as a means of responding to the public (Hager and Sullivan 1994) or media (Cohen 2008) environments. Yet, virtually no research explains the frequency of presidential commentary on Supreme Court cases. Thus, this article adds to the literature by exploring presidents' motivations to reference judicial decisions in their public commentary. Because presidents make spoken and written statements on both historic and recently decided Supreme Court cases, and may be motivated by different stimuli in doing so, we examine each type of public mention on both types of cases in our analyses.

Second, it sheds light on interbranch interactions between the executive and judiciary. Although studying the relationship between the president and the Court is important simply because the Supreme Court can invalidate acts of the presidency, scholars have traditionally explored these interactions by focusing on presidential nominations (e.g., Maltese 1995a, 1995b; Yalof 1999)and the influence of the solicitor general on the Court (e.g., Black and Owens 2012; Nicholson and Collins 2008; Pacelle 2003). This research adds to an understudied area of executive--judicial relations, which concerns why and to what extent the president responds to the policy actions of the Supreme Court.

Third, this research is significant because it demonstrates how deference to norms and the availability of formal institutions shape the timing of presidential speeches about Supreme Court cases. We show that, unlike going public to pressure Congress to pass legislation (e.g., Barrett 2004, 2005; Canes-Wrone 2001; Kernell 1997), presidents rarely discuss pending judicial decisions for the purpose of influencing the Court. This suggests chat presidents are deferential to the norm of decisional independence that is so central to an independent judiciary. In addition, the need to go public in this manner is reduced because presidents can communicate their preference to the justices more formally through the Office of the Solicitor General. Thus, this research adds further evidence that norms and the existence of formal institutional structures the behavior of political actors (e.g., March and Olson 2004; Peters 2012).

Presidential Speeches and the Judiciary

Presidents have long used public appeals to help achieve their goals. Kernell (1997) first observed that divided government and congressional gridlock encouraged presidents to reach beyond traditional bargaining (Neustadt 1990) to increase their legislative success. Later research shows that, although presidential speeches may not move public opinion (Edwards 2003), presidents can speak to increase news coverage of issues (Eshbaugh-Soha and Peake 2011) and, by strategically targeting those issues already supported by the public, increase their legislative success by issuing more public appeals (Canes-Wrone 2001). Others explore whether presidents speak in response to political and congressional variables (Barrett 2005; Eshbaugh-Soha 2010; Hager and Sullivan 1994; Powell 1999). Yet, few studies have explored the relationship between the president's rhetoric and the judiciary. The small body of research that does exist on this topic tends not to address presidential speeches about judicial decisions, but focuses instead on public remarks about judicial nominations.

Maltese (1995a) initiated this line of research, showing that presidents seldom spoke on behalf of Supreme Court nominees prior to Ronald Reagan's first term in office. Although the number of public appeals has increased beginning with Reagan, going public on behalf of Supreme Court nominees is still a rare event. Johnson and Roberts (2004) show that presidents are more likely to go public on nominations when the nominee and president are ideologically distant from the Senate and when the nominee is likely to move the median justice on the Court away from the Senate. Holmes (2007, 2008) extended these findings to U.S. court of appeals judges, evincing that the frequency of public utterances is minimal, but has increased over time, and is driven in large part by the vulnerability of the nomination in the Senate. Most recently, Cameron and Park (2011) found that presidents since 1980 go public more frequently than their predecessors, that a scandalous nomination (e.g., Bork or Thomas) increases public remarks, and the president's job approval has no impact on the president's attention to Supreme Court nominees. On the whole, it appears that presidents go public on nominees when their leadership is most needed, which occurs when their nominees are in danger of failing to be confirmed. Interestingly, research on the impact of these speeches is mixed. Although Krutz, Fleisher, and Bond (1998) and Johnson and Roberts (2004) demonstrate that going public increases the likelihood of confirmation, Holmes (2007) and Cameron and Park (2011) find that going public is negatively related to the success of a nomination.

Moving beyond judicial nominations, others have explored how presidents talk about the Supreme Court more generally. Flemming, Wood, and Bohte (1999) find that presidents increase their attention to policy issues in response to Supreme Court cases that concern civil rights. Although Flemming, Wood, and Bohte (1999) do not find that the Supreme Court responds to presidential attention to issues, Yates, Whitford, and Gillespe (2005) reveal that presidential attention to crime increases the percentage of the Supreme Court's agenda devoted to it. In addition, Blackstone and Goelzhauser (2014) discover that presidents speak more about the Court when a vacancy arises and...

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