“With All Due Deference to Separation of Powers”

As Gerard points out, of the many interesting facets of President Obama’s State of the Union last night (Biden’s choice of a purple tie to signal renewed bipartisan vigor; Justice Ginsburg nodding off, at points, in the front row; Nancy Pelosi’s cold; etc.), Justice Alito’s reaction to the Obama smack-down of Citizens United may have been among the most riveting.

What really intrigued me, however, was not Alito’s reaction, but Obama’s decision to directly criticize a recently decided case with members of the Supreme Court sitting directly below him. Indeed, when he chastised the Court, all of the members of Congress around the justices stood and clapped (see minute 46:07 here). Obama’s speech writers seemed to sense that this might not seem kosher to some observers and so they had him open his commentary on the case with the caution, “With all due deference to separation of powers . . .”

For the historians out there, I’m wondering how often other presidents have criticized the Supreme Court during State of the Union addresses or in other face-to-face interactions.

For everyone else, leaving aside your specific feelings about Citizens United, do you think that Obama’s choice to chastise the justices during the State of the Union is a threat to separation of powers?

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14 Responses

  1. C.T. says:

    On one of the morning news programs, a commentator mentioned that the rebuke in the text of the speech (which was distributed to journalists in advance) was much harsher than the one actually delivered by Obama. Apparently Obama (and/or his speechwriters) had planned to call on Congress to in effect fix the problem created by the Citizens United decision. Had he actually delivered this component of the speech, I would have been very troubled by the SOP implications. To be honest, even the toned down version that was delivered last night did not seem politic to me, it just seemed a little inappropriate, in my opinion.

  2. Managing Board says:

    What is wrong with the President using the State of the Union address to suggest that Congress take a particular action? Isn’t that exactly what Article II, Section 3 demands? (“He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient . . . .”)

  3. Howard Wasserman says:

    See this from Jack Balkin, showing FDR being pretty blatant in taking on the Court:


  4. Adam Benforado says:

    Thanks, Howard! Interested others should check out the link to the FDR speech – fascinating stuff.

    C.T.: I hadn’t heard that and I wonder if there was internal pushback that led to the last-minute revision.

    Managing Board: Yes, it’s true that the Constitution does require the President to make recommendations to Congress, but the Founders were also very concerned with insulating the judiciary as a countermajoritarian check on the other branches. It’s worth considering whether that purpose is undermined when the Court is publicly chastised on national television by the legislature and executive. In my estimation, Obama’s actions don’t present all that significant a threat to the judiciary’s independence, but I can imagine similar State of the Union scenarios that might . . .

  5. Norman Williams says:

    I think the political branches have been far too deferential to the Court the past few decades. This deference and undue sensitivity for the Court is premised, at least in part, on the assumption the Supreme Court has the exclusive and final authority to interpret the Constitution. Witness Sen. Mitch McConnell’s statement to that effect, criticizing the President’s statement last night. As Larry Kramer correctly noted several years ago, this deference to the Court is a new development in American history. In the nineteenth century and for most of the twentieth century, Congress and the President often expressed their displeasure with Supreme Court rulings and threatened retaliation. In comparison with these past statements, the President’s criticism last night was pretty mild. He did not, as he could have done, propose a court-packing plan, a reduction in the Supreme Court’s budget, or, as Republican Senators proposed in the 1970s, stripping the Supreme Court of its jurisdiction in certain types of cases. If Justice Alito does not like being called out in public, perhaps he should not attend the Address in future years, thereby sparing his tender ego such indignities.

  6. Ken Rhodes says:

    Professor Benforado asked: >>leaving aside your specific feelings about Citizens United, do you think that Obama’s choice to chastise the justices during the State of the Union is a threat to separation of powers?>>

    A threat? My goodness yes, it will totally upset the balance of powers. Now those Supreme Court justices will always have to worry about what the President might be thinking while they plan their reelection campaigns. ::sarcasm off::

    Seriously, though, I’m not clear on why “separation of powers” should be threatened by “expression of opinions.” Was there some paragraph I missed where the President recommended to Congress that they amend the Constitution to diminish the authority of the Court?

    What it sounded like to me was the President said to Congress “You folks on both sides of the aisle have to figure out how to achieve this objective, which we both believe in, and still stay in compliance with the Constitution.” Isn’t that a GOOD thing?

  7. Logan says:

    A threat to the separation of powers? Hardly. Would I have done it? Probably not. Was it rude? Depends on if you agree with the ruling. Why is it such a big deal? Joe Wilson didn’t yell anything.

  8. Tuan says:

    Obama’s remark didn’t seem very politically astute. It was a great way for Obama to alienate and offend Kennedy as both the Court’s resident swing voter and the author of Citizens United.

    But a threat to the separation of powers? Please. Article III judges ought to be made of sterner stuff.

  9. George Conk says:

    Criticism of the vestal virgins is refreshing. What is striking is Obama’s impotence in the face of Citizens United.

    Bully pulpit criticism of a decisions by judges with life tenure is hardly a threat to separation of powers. Since Bivens the Court has the option of asserting original jurisdiction in constitutional rights claims. So you can’t even divest the courts of jurisdiction over election law matters.

    – George Conk

  10. Marc DeGirolami says:

    There’s a perfectly simple solution to all of this. If you’re a Supreme Court Justice, just don’t go to these events. That way, the Justices can be spared the face-to-face criticism and attendant inability to respond in kind; the President can be spared the burden of offering insincere salaams to the separation of powers and say what he wants to; and the rest of us can be spared the farcical notion that State of the Union addresses are somehow occasions above partisanship (purple ties notwithstanding) and anything more than pomp-encrusted opportunities to score political points.

  11. A.J. Sutter says:

    If SCOTUS can invalidate acts of Congress and the executive, sometimes with its rhetorical lips curled, and if Congress can pass legislation because it doesn’t like a Court decision and can routinely defy and thwart the executive, where’s the threat to separation of powers from the President expressing an opinion in the presence of some Justices? Or is your point that Obama shouldn’t have bothered to preface his remarks with “due deference” at all?

  12. Reavis says:

    Not the first time a president has criticized the justices, just the first to be criticized for it. What else is new?

  13. William Awur says:

    My fellow Americans, lead me your ear, I would like to let all of you know that our country is facing difficult time. Economy, Healty care, energy, and education. I have realized that education in America is major problem. The Universities and Colleges are charging students higher tutitions and with little quality of education. I call upon congresss to evulated the performace of teachers in Univeristies and collenges. Americans students are learning and I believe that it is major threat to our future when these institutions charged more tutition with little to offer. I urged all Congress of the 50 states to reviewed all text books.

  1. January 28, 2010

    […] who believes Citizens United was correctly decided.” And did the speech as delivered tone down rhetoric about Citizens United that had been distributed in printed […]