Tony Mauro: Obama's Unprecedented Criticism of the Supreme Court
Tony Mauro is Supreme Court correspondent for National Law Journal, Incisive Media, and law.com. He has covered the Supreme Court since 1979, first for Gannett News Service and USA TODAY and then, since January 2000, for Legal Times, which merged with its sibling publication the National Law Journal in 2009. Mauro is also a legal correspondent for the First Amendment Center.
President Barack Obama's pointed criticism of the Supreme Court in tonight's State of the Union address, which we reported on here and here was beyond unusual; it was almost unprecedented. The third branch rarely even merits a mention in the State of the Union speeches, according to a search we've made going back to Woodrow Wilson's speech in 1913 in this University of California Santa Barbara database. (Thanks to editor David Brown for the research.)
Presidents have mentioned the Supreme Court by name only nine times since that Wilson speech nearly a century ago, according to the search, and it would be hard to categorize many of those nine as criticisms. Even President Franklin D. Roosevelt, who had a lot of grievances with the Court, never mentioned it in any of his State of the Union messages. And Richard Nixon, who campaigned against the Warren Court, mentioned the Supreme Court in a State of the Union talk only once, in 1972, in a bland, welcoming way.
In 1988 President Ronald Reagan made an indirect jab at the Court's school prayer rulings when he said, "And let me add here: So many of our greatest statesmen have reminded us that spiritual values alone are essential to our nation's health and vigor. The Congress opens its proceedings each day, as does the Supreme Court, with an acknowledgment of the Supreme Being. Yet we are denied the right to set aside in our schools a moment each day for those who wish to pray. I believe Congress should pass our school prayer amendment." In the same speech Reagan also urged the Senate to confirm Anthony Kennedy to the Supreme Court -- the very justice whose handiwork in Citizens United Obama was criticizing.
President Warren Harding in 1922 also urged passage of a constitutional amendment to counteract Supreme Court rulings -- the decisions that placed child labor "outside the proper domain of federal regulation," as he put it. Harding added, "We ought to amend [the Constitution] to meet the demands of the people when sanctioned by deliberate public opinion."
In 2006, President George W. Bush thanked the Senate for confirming John Roberts Jr. and Samuel Alito Jr. and paid tribute to Sandra Day O'Connor, whose retirement become official the day of the speech.
Only President Calvin Coolidge routinely included the Supreme Court in his State of the Union addresses, but not to praise or damn it. It appears he had a "laundry list" approach to the speech, making sure to mention every sector of government, including the Supreme Court. In 1924, Coolidge offered the Court a helping hand, urging Congress to give the justices more discretion over their docket to reduce a congested docket. "Justice long delayed," Coolidge said, "is justice refused."
UPDATE: An alert reader notes that in his January 1937 State of the Union address, Roosevelt criticized the Supreme Court without using those words. Upset that the Court had thwarted his efforts to pull the nation out of the Depression, Roosevelt a month later introduced his ultimately unsuccessful "court-packing" plan that would have allowed him to expand membership of the Court and add justices of his own choosing. Here is what Roosevelt said in his State of the Union address: "The Judicial branch also is asked by the people to do its part in making democracy successful. We do not ask the Courts to call non-existent powers into being, but we have a right to expect that conceded powers or those legitimately implied shall be made effective instruments for the common good. The process of our democracy must not be imperiled by the denial of essential powers of free government."