Vol. 30 No. 9 (October 2020) pp. 141-148THE PRESIDENT AND THE SUPREME COURT: GOING PUBLIC ON JUDICIAL DECISIONS FROM WASHINGTON TO TRUMP, by Paul M. Collins, Jr. and Matthew Eshbaugh-Soha. Cambridge University Press, 2019. 287pp. Cloth $110.00. ISBN: 9781108498487. Paper $23.76. ISBN: 978-1108723893.
Reviewed by Elizabeth Lane, Department of Political Science, Louisiana State University. Email: elane8@lsu.edu.
“Do you get the impression that the Supreme Court doesn’t like me?” This was one of a number of tweets President Trump made following the Supreme Court’s June 18, 2020, decision in DHS V. REGENTS OF THE UNIVERSITY OF CALIFORNIA (2020) , adding to a growing number of comments on the Court from his first term as president. In 2020, presidential comments on the Court feel all too common, but beyond a few notable pieces on the president going public during Supreme Court confirmation battles (Cameron and Park 2011; Johnson and Roberts 2004), it is something scholars know very little about despite the fact that every president since Jackson has taken public positions on Supreme Court cases (p. 2).
The motivation and theoretical foundation of THE PRESIDENT AND THE SUPREME COURT: GOING PUBLIC ON JUDICIAL DECISIONS FROM WASHINGTON TO TRUMP is very clear. Collins and Eshbaugh-Soha ambitiously seek to explain why presidents go public about Supreme Court cases, the manner in which they do so, and whether or not they are influential in their pursuits. The authors successfully accomplish their lofty goals by the end of the book. They clearly express why presidents decide to talk about the Court, but the answer to if they are successful is slightly more nuanced. Collins and Eshbaugh-Soha lay out their theoretical argument in Chapter 1, which answers the “why” question. The authors contend that presidents go public on decided cases to promote (1) reelection, (2) policy goals, and (3) historical legacies. These objectives then determine the timing, tone, topic, venue (i.e., written or spoken), and audience (i.e., Congress, media, or public) in subsequent chapters of the text. Collins and Eshbaugh-Soha also spend time discussing the significant normative consequences of a president’s decision to go public. More specifically, they acknowledge that the president’s decision to go public violates the popularly held norm of judicial independence yet adheres to and promotes a broad view of coordinate construction -- the idea that the president, in addition to the Court, has a responsibility to help define constitutional understanding.
Before moving forward, it is important to explain Collins and Eshbaugh-Soha’s novel dataset on presidential comments on Supreme Court cases. They divide these data in two ways. The first is by time period. The majority of the book focuses on the modern presidency (1953 - 2016). They also reserve a chapter for the historical era (1719 - 1952) as there was not much action on this topic back then. Next, they divide the data by comments made on pending and decided cases. The book opens with a story from April 2, 2012. President Obama publicly commented on NFIB V. SEBELIUS (2012), a case the Court just heard in late March and did not release [*142] its decision until June 28, 2012. This vignette paints a vivid and interesting picture of a president attempting to influence a Supreme Court case outcome. However, the reader soon learns this is a relatively uncommon occurrence. In fact, in the modern era, presidents have only spoken about pending cases on 54 occasions, an extremely rare occurrence if you consider the thousands of Supreme Court cases that they had the opportunity to speak about.
Chapter 2 details presidents’ decisions to go public on the few occasions before the Supreme Court releases a decision. The authors point out that the primary reason going public on pending cases is so rare is because it comes at great risk of criticism for overstepping constitutional boundaries and thus encroaching on judicial independence. The benefits of going public on undecided cases all relate to policy and election goals via position-taking to send signals that certain issues are important. That being said, there does not seem to be a clear strategy across presidents for engaging in this type of behavior. Although with so few instances, it is hard to say. Bar charts on position-taking by presidents on pending cases reveal that President Obama went public more than any other president during his two terms in office. He often took a strong policy position closely related to his policy priorities, but most of these statements were unplanned remarks or answers to questions from reporters. President Clinton who trails only Obama in these types of remarks also linked pending decisions to his policy priorities. However these were always strategically prepared written or spoken statements (see Figures 2.1 and 2.3 - 2.5). All in all, the idea and story of the chapter end up being more interesting than the actual data bear out. It would have been informative to investigate whether there is systematic evidence of the backlash faced by presidents for these comments. Is it riskier because it results in more criticism for presidents to speak on pending decisions when the Court is ideologically distant from them? Or, do they only engage in this activity when the policy they are speaking out on has wide public support?
Given that cometary on pending cases is rare, the question, in Chapter 3, then becomes, why do presidents go public on previously decided cases? The authors do a good job throughout the book of reminding the reader of presidents’ motivations to speak out about the Court’s past decisions, and this chapter is no exception; presidents do so to promote (1) reelection, (2) policy goals, and (3) historical legacies. To examine why this occurs, Collins and Eshbaugh-Soha estimate four models with four different dependent variables. The first set of models divides their modern presidency data between presidents’ comments on recently decided cases and historic cases. The second set of models uses the same data but instead examines if there are differences between written and spoken remarks. The authors divide the data in this way to test their hypotheses related to presidential goals. For example, they hypothesize that spoken remarks are aimed primarily at reelection efforts and legacy boosting. Thus there should be an increase in spoken discussion of all Supreme Court cases during reelection years and recent decisions in their final term. Their analysis confirms this expectation. Conversely, Collins and Eshbaugh-Soha contend that presidents are more likely to release written statements on recent decisions when the government is divided in an effort to further their policy goals. This, too, is supported by their analysis. [*143]
The dataset the authors compiled is impressive and Chapters 2 and 3, along with the rest of the book, do a good job showcasing its utility and contribution. That being said, I think the authors missed an opportunity to examine the underlying data generating process. Why do presidents choose to speak out on some cases and not others? Modern presidents spoke out on a total 256 unique cases (both pending and decided) in their public remarks for a total of 937 case mentions (Collins and Eshbaugh-Soha 2019, 20). This action is extremely rare when one considers the total population of cases available to discuss is 28,678 through OT 2016 (Epstein et al. 2019). But perhaps that's an overinclusive denominator. Even if one limits cases to the modern era, which aligns nicely with the modern presidency, there are still more than 10,000 cases decided (Epstein et al. 2019), which means presidents actually go public on less than 2.5% of the Supreme Court’s cases. What makes these cases unique and worthy of presidential mentions compared to the thousands of other cases the Court decides? This is an interesting question in itself and raises important questions from the justices’ perspective of whether they can or actually do anything to prevent or encourage the president’s decision to speak about their cases (Black et al. 2016).
The flow and build of the book is exquisite. Chapter 2 naturally flows into Chapter 3 to examine the remaining data, and Chapter 3 feels like a steppingstone to Chapter 4. If presidents are strategically choosing to mention decided cases, how are they mentioning these cases? As the authors detail, President Obama did not simply cite CITIZENS UNITED (2010) in passing, he looked the justices in the eye during the State of the Union and condemned their decision. It was evident that he disagreed with the Court’s ruling and he called on members of Congress to act to correct certain problems the decision created. It is in this chapter that the mechanism becomes clear - presidents strategically mention cases in a positive or negative tone in order to generate support or opposition to a decision and gain the attention, and influence the potential action, of certain actors. These actors include Congress, the media, or the general public, which are handled in turn in the subsequent chapters.
Generally speaking, the results are as expected. Ideological distance between the president and Supreme Court decisions increases the likelihood of negative remarks and decreases the likelihood of a positive comments. Salient cases are simply more likely to generate commentary ( positive, negative, and neutral). Something somewhat strange is that the positive and negative remarks models are almost identical except for two control variables that appear in the negative model but not in the positive model. Those variables are whether the U.S. lost the case (dichotomous indicator) and the minimum winning coalition (dichotomous indicator coded as 1 if case was decided by one vote, 0 otherwise). Theoretically, if the Solicitor General succeeds before the Court, the president and his administration would gain a victory. Therefore, the likelihood of a positive comment would increase.. Similarly, it would seem that the president’s preferred position winning by a unanimous decision this would be something to positively comment on however the dummy coding of minimum winning coalition as opposed coding it as the margin of victory does not permit this nuanced analysis.
When I first received this text, I paged through the table of contents, and upon first glance, I was looking forward to reading Chapter 5: Presidential Calls to Congress, [*144] the most. This chapter involves all three branches of government and touches on the Court’s Achilles heel: its lack of enforcement power. Of course, all judicial scholars writing on the separation of powers, your humble reviewer included, have quoted Federalist No. 78 to reinforce their contribution and the importance of their research. Collins and Eshbaugh-Soha avoid this over-used trope, but that same idea underlies the significance of this chapter in which they address whether the president can actually inhibit or advance policy created by a Supreme Court decision by calling on Congress to take legislative action. I must confess to being more than a little bit disappointed by the authors' choice to only examine the relationship between the three branches of government descriptively. Their data reveal that when the president calls to Congress for action regarding a Supreme Court decision, it is mostly for negative legislative action. For example, President George W. Bush asked Congress to authorize military tribunals in Guantanamo Bay following the Court’s decision in HAMDAN V. RUMSFELD (2006). And somewhat surprisingly, Congress appears to be extremely supportive of these calls. The authors note that of the 90 unique calls (167 total), Congress takes action more than half of the time (52), with the modal outcome resulting in passed legislation. This seems remarkable, but of course there is no way to see the full picture. Are these proposals also supported by constituents? Does the president have a high level of approval? Is the government divided or unified? How old is the case? Has there been a repeated call for action? Was the case decided by a narrow margin? These are all considerations that likely influence the president’s actions as well as the congressional response. The lack of modeling here leaves two largely unanswered questions: under what circumstances does the president calls on Congress, and what results in a successful response? I sincerely hope that the authors' omission of a model from this text means that they have plans to pursue it in future efforts, but it is nonetheless disappointing that it is not included here, especially given how interesting it would have been to have this more complete picture.
Chapter 6 shifts the focus from Congress to the media and specifically asks if a president can shape the coverage of a Supreme Court decision through his rhetoric. The authors find that presidential remarks on Supreme Court cases increase their likelihood of media coverage, which is limited to the front page of the NEW YORK TIMES. However, overall they find the same trend as other research: that media coverage of the Supreme Court in general has declined over time, despite presidential acknowledgment. Next, the authors examine if the tone of these remarks on decided cases is reflected in the newspaper’s coverage. That is, if President Nixon expressed his disagreement with the Supreme Court’s decision in U.S. V. NIXON, would the coverage of this decision have reflected the president’s negative tone? Generally speaking, Collins and Eshbaugh-Soha find that the president has virtually no control over the tone of the NEW YORK TIMES’S coverage of Supreme Court cases. Overall, I think this bodes well for the Court as an institution. Journalists, at least at the NEW YORK TIMES, do not allow the president’s personal feelings or motives to contaminate their reporting, which in turn maintains the boundaries of independence between the Court and other branches for their readers. That being said, when you reconsider the theory that presidents speak out to promote policy, reelection, and historical legacy, the fact that presidents can only dictate the amount of coverage but not shape the coverage itself seems potentially problematic to their efforts to go public in the first place. [*145] Perhaps presidents cannot wield control over smart reporters but rather have a greater effect on the general public.
A simple turn of the page reveals the answer to the question posed at the close of the previous chapter as to whether the president’s rhetoric on Supreme Court decisions is more effective on the public. To answer this question, the authors move beyond the novel dataset they compiled and conducted a 2x3 survey experiment in which mTurk respondents were exposed to either a high or low salience case where the president praised, criticized, or made no mention of the Court’s decision. Their results appear to be consistent with existing literature on public opinion and the Supreme Court. The president’s comments, which were presented to respondents in the form of an Associated Press article, were unable to move respondents’ approval of the Supreme Court as an institution, commonly referred to as diffuse support. They find, however, that presidents are able to influence the public’s support for the Court’s decision in low-salience cases. If the president praises the Court’s decision, the public is significantly more likely to agree with the decision, whereas if he criticizes the ruling, the public is significantly less likely to agree with it. This fits with the authors’ theory that the president’s opinion acts as a heuristic for the public, particularly in cases where the public’s attitude is not already set.. Yet, like the previous chapter, the president lacks the ability to control the story and fails to influence the public on salient issues before the Supreme Court.
Throughout this narrative, I perceived the president trying to lead and shape opinion and actions of Congress, the media, and the public with regard to the Supreme Court decisions. However, the authors make a very interesting and important point toward the end of the chapter: every modern president, aside from Nixon, overwhelmingly took positions that were congruent with public opinion on Supreme Court cases. This struck me that instead of trying to shape the public’s view of the Court’s decisions, perhaps presidents try to further their policy and reelection goals by appearing to be responsive to what Americans want. This assessment made me recall Chapter 4: Tone of Presidential Rhetoric on Supreme Court Decisions. If the story is actually that presidents are being responsive to the public, why is there no discussion of something like public mood and its effect on tone, and why is it not included as an independent variable in these models?
Chapter 8 shifts the focus from the modern presidency to the historical presidency. As mentioned previously, there were not many presidents going public on Supreme Court cases early in the nation’s history. According to the data, President Andrew Jackson was the first president to engage in this action, and every president since the often-forgotten President Chester Arthur, has done so. The two outliers who did so with a much higher frequency than their historical counterparts were Presidents Theodore and Franklin Roosevelt. In fact, FDR made over 53 mentions of cases, which is more in-line with some of the modern presidents. It should come as no surprise that when Collins and Eshbaugh-Soha break FDR’s presidency down by year, the majority of his comments come from 1936 and 1937, the height of when the Four Horsemen on the Court continually struck down New Deal legislation and FDR proposed his Court packing plan during his fireside chat. There was a dramatic drop off the following year after the Court upheld important legislation related minimum wage and the National Labor Relations Board [*146] (NLRB), and the leader of the Four Horsemen, Justice Vandeventer, retired. While the book does not get into a deep discussion, any Court nerd will appreciate figures and understand the trends.
The final chapter closes with some information that aims at answering a question I was dying to know since reading the title of the book: Is President Trump different when it comes to going public about Supreme Court decisions? One’s gut reaction would be yes, and Collins and Eshbaugh-Soha acknowledge that right away. They cite a host of examples in which Trump goes above and beyond criticizing the Court’s decisions to lambasting individual judges and justices on a personal level. When comparing apples to apples, Trump is more in line with President Reagan based on the number of comments he has made on Supreme Court decisions. But this is only when comparing apples to apples. As any voting aged person in the American public is aware, Trump weaponizes another pulpit to bully from that previous presidents did not: Twitter. When the authors include Trump’s tweets, his remarks on decided cases are slightly below Presidents Obama, George W. Bush, and Clinton, his immediate predecessors. However, Trump is far and above any other president in the number of comments on pending cases (more than double of, George W. Bush, who places second on that list).
Collins and Eshbaugh-Soha’s book is well written and would be an excellent addition to any undergraduate or graduate course on American political institutions. It is straight-forward, easy to follow, and rich with examples that provide helpful context. That is not to say their book is not a significant contribution of scholarly work. This research provides an important theoretical foundation as to why presidents use their bully pulpit regarding the Court outside of confirmation hearings, something the discipline has long needed. Furthermore, it acknowledges important theoretical debates, most prominently the idea of judicial independence and coordinate construction, but in a modern way. Simply put, this work is accessible for those just learning about American government and still interesting and enjoyable to those who are well acquainted with this literature.
As with any great book, Collins and Eshbaugh-Soha end up raising nearly as many questions for future research as they have answered in this volume. As mentioned, I am eager to learn about the president’s relationship with Congress, which Supreme Court cases are worthy of presidential comments, and the idea mentioned at the end of Chapter 7 about the president actually gaining support by following the public’s position on Supreme Court decisions. There is much more that can still be done with this data, and the authors acknowledge that. They close the book with some avenues of future research. One that they did not take up here is to consider is how the president’s use of the bully pulpit on Supreme Court decisions impact the Court’s future agenda. The authors made it very clear that most presidents rarely cross that line of attempting to influence the Court’s decisions by commenting on pending cases, but it is possible that organized interests and other interested parties are listening to the president the same way they listen and watch for signals from the Court as to what types of cases to bring (Baird 2004, 2007; Rice 2014). That is to say, does the president’s decision to go public on Supreme Court decisions impact future cases petitioning for writ of certiorari, and do these cases have a higher or lower likelihood of being granted review? [*147]
In closing, I think it is important that researchers continue Collins and Eshbaugh- Soha’s work moving forward. In a time where it feels like American political institutions and the media are more polarized than ever, it is somewhat comforting to know that the Court retains more than a semblance of judicial independence from the executive. But if President Trump is reelected or the trend of commenting on pending cases continues, how will this change the current executive-judicial relationship? Would the justices use the president’s remarks as a barometer of the public? Even so, will this influence their decisions? Only time will tell. Collins and Eshbaugh-Soha opened the door to many interesting research questions for future scholars to answer with this timely work.
CASES:
CITIZENS UNITED V. FEC 558 U.S. 310 (2010).
DHS V. REGENTS OF THE UNIVERSITY OF CALIFORNIA 591 U.S. ___ (2020).
HAMDAN V. RUMSFELD 548 U.S. 557 (2006).
NFIB V. SEBELIUS 567 U.S. 519 (2012).
U.S. V. NIXON 418 U.S. 683 (1974).
REFERENCES:
Baird, Vanessa A. 2004. “The Effect of Politically Salient Decisions on the U.S. Supreme Court’s Agenda.” THE JOURNAL OF POLITICS 66(3):755–772.
Baird, Vanessa A. 2007. ANSWERING THE CALL OF THE COURT: HOW JUSTICES AND LITIGANTS SET THE SUPREME COURT AGENDA. University of Virginia Press.
Black, R. C., Owens, R. J., Wedeking, J., & Wohlfarth, P. C. (2016). US SUPREME COURT OPINIONS AND THEIR AUDIENCES. Cambridge University Press.
Cameron, Charles and Jee-Kwang Park. 2011. “Going Public When Opinion Is Contested: Evidence from Presidents’ Campaigns for Supreme Court Nominees, 1930-2009.” PRESIDENTIAL STUDIES QUARTERLY 41(3):442–470.
Epstein, Lee, Thomas G. Walker, Nancy Staudt, Scott Hendrickson and Jason Roberts. 2019. “The U.S. Supreme Court Justices Database.”
Johnson, Timothy R. and Jason M. Roberts. 2004. “Presidential Capital and the Supreme Court Confirmation Process.” THE JOURNAL OF POLITICS 66(3):663–683. [*148]
Rice, Douglas. 2014. “The Impact of Supreme Court Activity on the Judicial Agenda.” LAW & SOCIETY REVIEW 48(1):63–90.
© Copyright 2020 by the author, Elizabeth Lane.
