William G. Ross, Albert P. Brewer Professor of Law and Ethics at the Cumberland School of Law at Samford University, discusses the complications of President Biden weighing in on the Supreme Court opinion overturning Roe v. Wade...
Perhaps the most remarkable aspect of President Biden’s speech criticizing the Supreme Court’s rejection of Roe v. Wade is that he gave the speech at all. Presidents historically have wisely refrained from commenting on Supreme Court decisions. Biden’s delivery of the speech on the very same morning that the Court delivered its opinion in Dobbs v. Jackson Women’s Health makes his speech even more remarkable. The fact that such presidential criticism of a newly minted Court decision presumably surprised few Americans is another sign of how old political taboos are falling. Since Biden unabashedly used the decision to appeal for the election of Democrats to Congress and state legislatures in November, the decision also accelerates the trend toward greater prominence of judicial issues in elections. Although Biden wisely refrained from addressing broader judicial issues, and while it is understandable that Biden wanted to offer consolation, hope and reassurance to the countless Americans who were dismayed by the decision, the speech was ill-advised to the extent that it interjected politics into an already increasingly politicized judicial process.
Presidential comments about Supreme Court decisions, at least until recently, have been widely regarded as a transgression of separation of powers. The Constitution prescribes roles for each of the three branches of government, which generally interact—at least in public—only pursuant to formal constitutional structures. Members of the Court generally are expected to avoid political comments, hence the widespread criticism of Justice Ruth Bader Ginsburg in 2016 when she made derogatory comments about Donald Trump during his first presidential campaign. Similarly, presidential remarks about the Court’s decisions generally are perceived as interferences with the work of a coordinate branch of government, which, at worst, could undermine judicial independence by influencing or even coercing the judiciary, or erode the rule of law by encouraging disrespect or defiance of judicial decisions.
Most presidents, therefore, have refrained from criticizing even decisions with which they sharply disagree, and the rare departures from this tradition often have generated sharp rebukes. Most notably, Franklin D. Roosevelt suffered mostly in silence throughout 1935 and 1936, when the Court struck down several of his New Deal measures. When he dared to say at a press conference that one of these decisions represented a “horse and buggy” concept of the Constitution, his comment was so widely execrated that he refrained from future criticisms until he unveiled his Court packing plan after his landslide reelection in 1936.
This tradition is so strong that Presidents have been hesitant even to praise decisions of the Court or encourage compliance with them. President Eisenhower has been widely criticized for refusing to categorically urge obedience to Brown v. Board of Education (1954) in the wake of widespread defiance of that decision. Although his reticence may in part have reflected his misgivings about Brown, it is likely that he also felt that it would be presumptuous of a president to say anything about a judicial decision.
On the rare occasions when presidents have commented about the Court, they have tended to avoid taking sides. When President Kennedy was asked at a press conference about Engel v. Vitale (1962), the Court’s decision banning state-mandated prayer in public schools—one of the most controversial judicial decisions in American history—Kennedy remarked that he understood why it troubled many Americans but explained that such opponents had an “easy remedy” insofar as they could pray more often with their children at home and take them more frequently to worship services.
Presidential comments about Court decisions have become more common during the past decade. President Obama criticized the Court’s campaign financing decision, Citizens United v. FEC (2010), in a State of the Union address, and in a 2016 press conference he criticized the Court’s decision in United States v. Texas, which sustained a lower court decision blocking his Executive Order to stay the deportation of persons who were in the United States illegally.
President Trump tweeted many highly derogatory remarks about judges of the lower federal courts whose decisions he disfavored. The Brennan Center for Justice has complied a long list of these. For example, Trump’s disparagement of a federal judge who ruled against his administration on a border security issue as an “Obama judge” prompted Chief Justice Roberts to make an almost unprecedented public response to a presidential statement, defending the federal judiciary for its independence and nonpartisanship.
Although one might believe that Biden was unwise to make any comments about the Court’s abortion decision, especially so quickly after it was rendered, one might argue that the content of his speech was an appropriate response to the Court’s decision. For someone who so often and so unfortunately shoots from the hip, Biden was remarkably temperate and thoughtful. The Court’s decision was no great surprise, and the speech sounds as if it was carefully prepared in advance. A meticulous choice of words is particularly advisable when a president criticizes a coordinate branch of government. Although presidential comments about judicial decisions are extraordinary, the Court’s decision is so extraordinarily controversial and sweeping in its implications that Biden’s speech might have been more justified than most presidential criticisms of judicial decisions.
Biden appropriately reassured Americans who were dismayed by Dobbs that his administration will do whatever it can to protect reproductive rights within the context of the decision. In particular, he explained that the administration will protect women’s access to contraceptives and medications approved by the Federal Drug Administration and that he already directed the Department of Health and Human Services “to take steps to ensure that these medications are available to the fullest extent possible.”
Biden’s speech also served an educational purpose by explaining that many states permit abortion and that women in states that ban abortion can travel to those states for abortion. He could, however, have been more explicit by saying that the decision permits, but does not require, states to prohibit abortion, a critically important point that many Americans do not understand. Biden also explained how the Court’s decision could jeopardize other forms of privacy, including the right to use contraceptives.
Moreover, Biden wisely refrained from addressing broader judicial issues.
First, Biden made no mention of the Court’s decision two days earlier striking a New York statute prohibiting concealed weapons in public, New York State Rifle & Pistol Association, Inc., v. Bruen. Since supporters of abortion rights also tend to support gun control, both decisions were highly disappointing to many liberals who voted for Biden, but they involve a distinct set of constitutional issues. Biden therefore was wise not to bundle the two cases. Mentioning the other decision would have constituted an attack on the present direction of the Court, which would have been much more confrontational than the criticism of a single decision.
Biden also avoided any criticism of the Court’s institutional powers, particularly its power of judicial review, which has come under attack when the Court has rendered controversial decisions in the past. Indeed, it would have been impossible for Biden to criticize judicial review in the context of Dobbs, since the Court’s decision was premised on its conclusion that the Court should not strike down state laws prohibiting abortion but rather should defer to the elected representatives of the people. Biden therefore was left to criticize the Court for failing to adhere to precedent, an issue that does not involve the Court’s institutional powers. Biden thus did not make the mistake that President Obama made in 2013 when he made remarks that seemed to question judicial review itself in defending the constitutionality of the Affordable Care Act. President Obama later explained that he meant only that the Court should exercise judicial review with self-restraint.
Biden likewise properly refrained from mentioning any of the many perennial proposals for curbing those powers or altering the manner in which the Court exercises those powers. It is especially noteworthy and praiseworthy that Biden said nothing about widespread Democratic proposals to overcome the Court’s new “conservative” majority by “packing” the Court with additional justices. Court packing, which had been dormant and discredited since Franklin D. Roosevelt’s Court-packing plan went down in flames in 1937, suddenly reemerged as a topic of discussion during the 2020 Democratic presidential primaries. Shortly after Biden’s inauguration last year, Democrats introduced legislation in both houses of Congress to increase the Court’s membership by four justices. Critics of the Court meanwhile have revived proposals to impose term limits on justices, permit Congress to override Supreme Court decisions and allow the Court to strike down legislation only with the vote of more than a bare majority of justices. Faced with growing support for such proposals among Democrats, Biden last year formed a Commission on the Supreme Court of the United States to study these and other proposals. The nonpartisan commission issued a report last December that carefully reviewed these measures but did not recommend any of them.
Even if Biden supported any of these measures—and his silence about them and his decision to punt the issue to the commission—suggests that he opposes Court packing and Court curbing. Any announcement of support should be made in a discrete and comprehensive presentation to the nation rather than in a speech criticizing a particular decision.
Biden also appropriately urged peaceful responses to the decision, even though advocates of abortion rights do not have any significant history of violence.
Biden used harsh language to denounce the decision, describing it as “cruel” and averring that it “is the culmination of a deliberate effort over decades to upset the balance of our law. It’s the realization of an extreme ideology and a tragic error by the Supreme Court, in my view.” However, he mispresented no facts, made no ad hominem attacks on justices and merely expressed the opinions of countless Americans, including the three dissenting justices.
One of the primary purposes of Biden’s speech—perhaps its principal purpose—was political. Biden urged voters to elect federal and state legislators who would enact laws protecting abortion. He also pointed out that no executive action can restore Roe, only Congress can. He concluded that “with your vote, you can act. You can have the final word. This is not over.”
This is the most problematic aspect of his address, for it is unseemly for a president to jump on a judicial decision before the ink is dry to score political points. It understandable that any president would politically exploit a judicial decision that offends large numbers of voters. (According to one poll before the decision, two-thirds of voters, including 40 percent of Republicans, did not want Roe overturned.) But Biden’s apparent attempt to use the decision to bolster the prospects of Democrats in the upcoming elections feeds the growing public perception of the Court as an institution that decides cases on the basis of politics rather than law. Regardless of the extent to which the political views of the justices on both sides might have influenced their votes, all the opinions in the case—the majority, concurrence and dissent—seriously addressed substantial issues involving the extent to which the due process clause of the Fourteenth Amendment protects liberties that the Constitution does not spell out. Biden ought to have allowed Americans time to digest the constitutional issues before urging them to consider the decision in a political context.
William G. Ross is the Albert P. Brewer Professor of Law and Ethics at the Cumberland School of Law at Samford University in Birmingham, Alabama. His courses include Constitutional Law and American Constitutional History, and many of his publications address the interaction between the Supreme Court and public opinion.
Suggested citation: William G. Ross, President Biden’s Speech About Dobbs Was Ill-Advised, JURIST – Academic Commentary, June 27, 2022, https://www.jurist.org/commentary/2020/06/william-ross-president-biden-dobbs-speech/.
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