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Yale Law & Policy Review Inter Alia Essay - Keith Whittington - 09 - Final - 2010.06.29 6/29/2010 4:09:42 PM YALE LAW & POLICY REVIEW INTER ALIA The State of the Union Is a Presidential Pep Rally Keith E. Whittington* Introduction Some people were not very happy with President Barack Obama’s criticism of the U.S. Supreme Court in his 2010 State of the Union Address. Famously, Justice Samuel Alito was among those who took exception to the substance of the President’s remarks.1 The disagreements over the substantive merits of the Citizens United case,2 campaign finance, and whether that particular Supreme Court decision would indeed “open the floodgates for special interests— including foreign corporations—to spend without limits in our elections” are, of course, interesting and important.3 But the mere fact that President Obama chose to criticize the Court, and did so in the State of the Union address, seemed remarkable to some. Chief Justice John Roberts questioned whether the “setting, the circumstances and the decorum” of the State of the Union address made it an appropriate venue for criticizing the work of the Court.4 He was not alone.5 Criticisms of the form of President Obama’s remarks have tended to focus on the idea that presidential condemnations of the Court were “demean[ing]” or “insult[ing]” to the institution or the Justices or particularly inappropriate to * William Nelson Cromwell Professor of Politics, Princeton University. I thank Doug Edlin, Bruce Peabody, and John Woolley for their help on this Essay. 1. Justice Alito, who was sitting in the audience in the chamber of the House of Representatives, was caught by television cameras mouthing “not true” in reaction to President Obama’s characterization of the Citizens United decision. 2. 130 S. Ct. 876 (2010). 3. President Barack H. Obama, Address Before a Joint Session of Congress on the State of the Union (Jan. 27, 2010). 4. Robert Barnes & Anne E. Kornblut, Obama vs. Supreme Court, Round 2, Wash. Post, Mar. 11, 2010, at A01. 5. See, e.g., Douglas E. Edlin, “It’s Not What You Said, It’s How You Said It”: Criticizing the Supreme Court in the State of the Union, 28 Yale L. & Pol’y Rev. Inter Alia 27 (2010). 37 Essay - Keith Whittington - 09 - Final - 2010.06.29 6/29/2010 4:09:42 PM YALE LAW & POLICY REVIEW INTER ALIA 28 : 37 2010 the State of the Union address, even if acceptable in other contexts.6 Part of the ire seems to be driven by the particular setting of the State of the Union address. Randy Barnett, for example, painted the picture of the President “call[ing] out the Supreme Court by name, and egg[ing] on Congress to jeer” as the Justices sit “politely before him surrounded by hundreds [of] Congressmen.”7 Chief Justice Roberts seemed to agree, complaining that the members of Congress were “literally surrounding the Supreme Court, cheering and hollering, while the court—according to the requirements of protocol—has to sit there expressionless.”8 The State of the Union had “degenerated into a political pep rally.”9 In this Essay, I put the President’s remarks in a broader context in order to consider how unusual presidential criticism of the judiciary might be, in what contexts Presidents criticize the courts, and what the purpose of the State of the Union address is in the modern political and constitutional system. Presidents criticize the federal judiciary. They do so in a variety of settings, depending on what audience they hope to reach and what political goal they hope to accomplish. What truly distinguishes the State of the Union address from other contexts in which the President speaks is the mass audience and high salience of the event. If the Justices did not believe that the State of the Union addresses served as a presidential pep rally, then they have not been paying attention. 6. Bob Barr, Obama Insults Supreme Court with Uncivil Remarks, The Barr Code, http://blogs.ajc.com/bob-barr-blog/2010/01/28/obama-insults-supreme-court- with-uncivil-remarks/ (Jan. 28, 2010, 14:22 EST); see also Posting of Jordan Fabian to Blog Briefing Room, http://thehill.com/blogs/blog-briefing-room/news/78529- hatch-obamas-jab-at-supreme-court-rude/ (Jan. 28, 2010, 12:50 EST) (quoting Sen. Orrin Hatch: “Taking on the Supreme Court like [President Obama] did, I thought it was kind of rude.”); Ashby Jones, On Obama v. Alito, Who’s Right? Here’s Your Answer, Law Blog, http://blogs.wsj.com/law/2010/01/29/on-obama-v- alito-whos-right-heres-your-answer/ (Jan. 20, 2010, 10:17 EST). 7. Randy Barnett, State of the Union: How Did He Do?, Politico, Jan. 27, 2010, http://www.politico.com/arena/perm/Randy_Barnett_79413362-DD20-46A2- A092-D0579CC7D13F.html. 8. Barnes & Kornblut, supra note 4. 9. Id.; see also Adam Liptak, A Justice Responds to Criticism from Obama, N.Y. Times, Feb. 4, 2010, at A17. (quoting Justice Clarence Thomas: “I don’t go because it has become so partisan and it’s very uncomfortable for a judge to sit there.”); Michael Smerconish, Op-Ed., Reagan Defter in Dealing with Court, Phil. Daily News, Feb. 2, 2010, available at http://www.philly.com/philly/opinion/20100202 _Michael_Smerconish__Reagan_defter_in_dealing_with_court.html (suggesting that President Reagan criticized judicial decisions in the State of the Union more effectively by avoiding direct reference to the Court). 38 Essay - Keith Whittington - 09 - Final - 2010.06.29 6/29/2010 4:09:42 PM THE STATE OF THE UNION IS A PRESIDENTIAL PEP RALLY I. Criticizing the Courts in the State of the Union Presidents have criticized the Supreme Court, judges, and judicial decisions in State of the Union addresses prior to 2010. Such criticisms are not especially common, but neither are they unprecedented. The examples are fairly widely spread across the nineteenth century but become more common since the turn of the twentieth century. Only three of the first twenty-two Presidents, or fourteen percent made critical remarks in their annual message to Congress.10 Of the next nineteen Presidents, six have been critical of the courts, or thirty- two percent.11 Some Presidents are more direct than others. Some Presidents are harsher than others. But scoring points against judges and taking note of objectionable or problematic judicial decisions has become a recurrent feature of modern State of the Union addresses. Three nineteenth-century Presidents raised objections to the Court in annual messages to Congress. In each case, the criticism of the Court was indirect. The President focused his objections on a decision that the Court had rendered and what Congress might do to remedy the situation. President Martin Van Buren was perhaps the first to raise criticisms of the Court in an annual message to Congress in 1838. He objected to the Court’s decision in Kendall v. United States ex rel. Stokes,12 which had provoked a dissent from three of the Jacksonian justices: Taney, Barbour, and Catron. The Court upheld a writ of mandamus against the Postmaster-General to credit a payment against the government. Van Buren was quite indirect in his critique of the decision. The Administration had strongly opposed the power of the courts to issue the writ, but in his message Van Buren merely observed that “certain proceedings of law . have resulted in the payment of money out of the National Treasury, for the first time since the establishment of the Government, by judicial compulsion exercised by the common-law writ of mandamus.”13 The president went on to reassure his audience that “[n]o interference in the particular case is contemplated.”14 Instead, he called on Congress to pass legislation to strip the Circuit Court of the District of Columbia of the power to issue such writs in the 10. William McKinley was the twenty-second individual to deliver annual messages to Congress, and he delivered his last in 1900. The three critical messages were delivered by Martin Van Buren, Ulysses S. Grant, and Chester Arthur. The texts of the State of the Union messages can be found at The American Presidency Project, State of the Union Addresses of the Presidents of the United States, http://www.presidency.ucsb.edu/sou.php (last visited June 22, 2010). 11. The nine critical messages since 1900 were delivered by Theodore Roosevelt, Franklin D. Roosevelt, Jimmy Carter, Ronald Reagan, George W. Bush, and Barack Obama. 12. 37 U.S. (12 Pet.) 524 (1838). 13. President Martin Van Buren, Second Annual Message (Dec. 3, 1838). 14. Id. 39 Essay - Keith Whittington - 09 - Final - 2010.06.29 6/29/2010 4:09:42 PM YALE LAW & POLICY REVIEW INTER ALIA 28 : 37 2010 future.15 In 1873, Ulysses S. Grant informed Congress that “[a]ffairs in Utah require your early and special attention” as a result of the Court’s decision holding that neither the U.S. marshal nor the territorial marshal was properly constituted to summon jurors for the territorial district courts.16 Grant complained that “[a]ll proceedings at law are practically abolished by these decisions . Property is left without protection by the courts, and crimes go unpunished.”17 Congressional intervention was necessary to prevent the “anarchy” created by the Supreme Court’s decision.18 Chester Arthur was both more circumspect and more eloquent a decade later. He concluded his Third Annual Message thus: The fourteenth amendment of the Constitution confers the rights of citizenship upon all persons born or naturalized in the United States and subject to the jurisdiction thereof. It was the special purpose of this amendment to insure to members of the colored race the full enjoyment of civil and political rights.
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