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Presidents Should Weigh In on Supreme Court Cases

Jonathan Bernstein is a Bloomberg View columnist. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
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Should presidents comment on pending Supreme Court cases?

Barack Obama discussed the Obamacare subsidies case earlier this week, leading to complaints that it was improper or at least imprudent for the president to weigh in. Rick Hasen at Election Law Blog disagreed. He argued that, in fact,  presidents had been negligent in failing to do so in the past: “We need more attention to the controversial opinions of the Court. And the President is an important person to bring such attention.”

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To the extent there’s a norm discouraging presidents from discussing pending cases, new presidents should have strong reasons for violating it. Does such a convention exist? A paper by two political scientists says: sort of. They talk about “presidential deference to the norm of decisional independence,” and say that as a result, presidents “seldom” talk about current cases. That’s not quite the same as saying presidents don’t talk about current cases. So Obama’s decision to express himself may not become a problem unless he crosses the line of demanding a particular outcome, or claiming the court shouldn’t be allowed to rule against the administration.

On the other hand, it’s perfectly normal for the administration to weigh in on Supreme Court cases. In fact, that is the solicitor general's job description. Also, presidential appointees routinely argue the government’s position and the administration submits amicus briefs.

Given that, it’s mostly silly to say the president can have a position on a Court case, but just can’t say so in presidential words out of the presidential mouth. I’d still say, silly or no, norms should be respected unless there’s very good reason not to. But I’m not convinced a Dianne Wiest norm exists in this case:

So, go ahead, Mr. President, feel free to say how the court should rule and why. Just be sure not to challenge the court's legitimacy. That would be a violation of a real norm.

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To contact the author on this story:
Jonathan Bernstein at jbernstein62@bloomberg.net

To contact the editor on this story:
Max Berley at mberley@bloomberg.net