Presidential Rhetoric and Supreme Court Decisions

By Eshbaugh-Soha, Matthew; Collins, Paul M., Jr. | Presidential Studies Quarterly, December 2015 | Go to article overview

Presidential Rhetoric and Supreme Court Decisions


Eshbaugh-Soha, Matthew, Collins, Paul M., Jr., Presidential Studies Quarterly


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. …

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