High Court is Rare Topic for State of the Union Speeches

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."

Comments

[Are you sleeping?]

I may be wrong here, I'm sure somebody will correct me if I am, but aren't most corporations multinational and as such, not citizens of any one country? There liyalty is to their shareholders not the USA.Didn't the justices just open a a way for foreign interests to have a HUGE influence over the government of the country? Jobs have already been shopped out oerseas because of corporate interests, looks like election results could be next. Way for the court to protect the interests and sovereignty f the USA.

[David Petrano]

Obama’s entire agenda will fail unless he can convince Congress to increase the number of U.S. Supreme Court Justices to at least 15. We have had only NINE Supreme Court Justices since 1869;

FDRoosevelt almost succeeded in revising the Judiciary Act of 1869 (16 Stat. 44) to increase the number of justices from 9 to 15. After all, nine is not “set in stone.” Under the Judiciary Act of 1801 (2 Stat. 132), only 5 Justices sat on the Supreme Court. Since 1869, the U.S. population has increased twenty-fold, and an individual’s chance to have his/her case reviewed by the high court has been shrinking every year. An increase to 15 Justices will be easy to sell to the American people.

[Jeffrey Golin]

A constitutional amendment is the only way to reverse Citizens United because of the overreaching facial attack that the Supreme Court led on fundamental Constitutional grounds.

Any future bill that Congress tries to pass, given the breadth and scope of the Citizens United decision, could be and likely would be similarly struck down, unless or until the composition of the Court miraculously changes, and we ought not to wait for that to happen. Such a provident change of Court composition if it happened at all would merely result in a jury rig on the ship of state that could postpone permanent drydock repairs and someday unravel again, evading basic constitutional review.

This fundamental flaw in our constitution, arguably unforeseeable 200 years ago by the framers, needs permanent repair, what I would roughly style as a "Separation of Corporation and State" amendment.

Something that would prevent the slow transformation of our democracy into a corporate state, as happened in the '30s era of Germany and Italy, and as some argue as I do is occurring here right now.

It might be a 28th Amendment, requiring something like that Congress shall pass no law or court hold that a corporation is a natural person with full rights of citizenship. Madison and Jefferson spent a year studying and designed our constitution to analyze and avoid the pitfalls of numerous historic dead civilizations. They could not have foreseen Fascism, but Jefferson feared the power of the corporation to usurp the state. It might be time to shore up our constitution to prevent this from ever happening here.

[Robert Edward Johnson]

Tony, did you know that Glenn Greenwald over on Salon is quoting your posting to say the exact OPPOSITE of what it says? GG claims, linking to your posting: "While Presidents do not commonly criticize the Court in the SOTU address, it is far from unprecedented either." You, instead, state: "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." Far from unprecedented and almost unprecedented are pretty different.

[JTF]

The rights and very existence of corporations, unions and other collective legal personalities are derivative of the freedom of association of those natural persons who organize and support them. I think a law requiring the affirmative consent of shareholders, members and other human constituents to contributions supporting particular candidates would pass constitutional muster. If "more speech" is the answer, let it be the speech of corporate/union leaders to their own constituents, explaining why the contribution is in the organization's interest.

[e-Cigarette]

saftsa asfsafasfasfas

[JE]

@TJ:

I don't see the "direct threat to the Court" in the transcript from the '05 SOTU.

http://millercenter.org/scripps/archive/speeches/detail/4464

[br]

Congress shall make no law...

This was a constitutional, not statutory, ruling. If the President wishes to call upon the states to pass a constitutional amendment, that would be perfectly reasonable and acceptable, that's how our system works. But to suggest that the legislative branch should pass a bill to restrict speech and the press is a violation of his oath of office. That he disagreed with the results of the ruling isn't the issue, the issue is a desire to circumvent the legal procedures established by the constitution.

[editstet]

I have found it difficult to figure out how a newspaper run by corporation could run an editorial about an election, but another corporation simply because it does not own the newspaper could not buy space in it or another organ to oppose that point of view. Such regulation of speech and press is exactly what the First Amendment would seem to protect against. The answer to speech used to be more speech, until this law. The Court returned it to that stand and Obama doesn't like it. Rights are not divisible in the fashion that he would like if they are to remain rights for very long.

[Bruce Borrus]

Those who focus on whether corporations and individuals have the same "rights" have not read the First Amendment lately. The First Amendment does not grant rights to individials (or corporations). The First Amendment limits the power of government: "Congress shall make no law . . . abridging the freedom of speech, or of the press."

Congress has no power to make laws that restrain the publication of books (or in this case movies).

I am disappointed that four Justices thought that the government has the power to enact laws which restrain publication of books and movies? Don't they know that if the government has the power to censor the publications of corporations and unions, government has the power to censor the publications of other associations? Can there be a principled distinction between Citizens United and Move-on.org?

If freedom of speech and of the press were limited to individuals, the only people who could exercise free speech are those rich enough to self-publish, and those who have time enough to speak on street-corners. Oh yes, the First Amendment would also protect flag burners and nude dancers.

[WDF]

Striking down regulatory controls is not "judicial activism." It is an exercise of limiting congressional or executive powers. Interpreting Constitution and limiting powers of other branches is responsibility of the S.Ct. As others have stated, the law as applied was discriminatory to non-media based company's speech rights. If Court allowed restrictions on highly protected political speech for certain parties (and not others) because it is believed to be good policy, that would have been judicial activism, and would lead to future problems with such a decision as precedent. Those in favor of regulation of protected speech need to go back and try again to pass Const. muster. I expect boards of companies may hear from shareholders regarding contributions, and the flow of money will even out more than people think. Also, these contributions will be subject to disclosure and the warranted criticism that goes with being in someone else's pocket, etc.

[tj]

In '05, Bush made a statement about gay marriage that could be taken as a pretty direct threat to the Court to rule his way or be overturned by constitutional amendment.

[sqwilliam]

what are we really talking about here?

the image of a standing & jeering legislative branch adjacent seated supreme court justices.

has that ever happened?

[Marsha Goings]

I think it is interesting that there are those out there whose answer to things they don't like is to change the Constitution? Think about this - our nation was set up to be a nation of LAWS, not a nation that caters to whatever the popular opinion is at the moment. We are a REPUBLIC. Yet, I consistently hear people refer to us as a democracy. Republic denotes nation of laws... democracy denotes majority rules. In a true democracy, let's say we have a nation in which the majority of people are cannibals. The majority votes that you are dinner... after all it is what the people want. A nation of laws protects you from what the majority wants. That may seem simplistic, but it makes my point. Our laws have worked well - it is when people who do not even understand the SIMPLE differences between a democracy and a republic attempt to CHANGE that which has given them the freedoms they enjoy, that things start to unravel. The answer is NOT to change our Constitution! The answer is for people to EDUCATE themselves.

[Pam Bishop]

There may have been a unintended, weird prescience of activism in Alito's language at his confirmation hearings in the Senate. I had been struck at the time by his pledge, made several times over, to 'make' the best law or do his best to 'make' good law. I thought to see conservatives fainting in the aisles at these heretical locutions by their nominee but no such thing, and to my knowledge no one seems to have made anything of it.

[Hgus]

I didn't see the Obama statement as critizing the decision. I heard him warning against the impacts of the decision. Those are two totally different points.

Justice Scalia is a constructionist and he has long argued, that his job is not to decide what is best for the country, it is to decide as it applies to the constitution.

Even conservative constructionist like Scalia say, don't ignore the constitution because you don't like the judgements, change the constitution.

That is exactly what i heard from Obama. The decision may have been right (which i don't believe, but then again, i am not a constitutional scholar) but if the implication of that decision are bad for our country, then the citizens do have a recourse... a consitutional ammendment.

[Henry Reardon]

Anyone reading this realize that the law that was shot down exempted media corporations? So some corporations have free speech but others don't? Isn't that discriminatory?

[An Independent]

Wow -- How are businesses and corporations equivalent to people from the point of view of our founding fathers? I'm just as afraid of big business as I am of big government. Think about it.

[robinsrc]

Extending corporate power = upholding the constitution. Amazing. Don't you Roberts/Alito cheerleaders think that the rights of a legally chartered organization are just the sort of thing the people (ie the democratic branches) should regulate? This is easily one of the most "activist" opinions the court has published in decades. Now citizens are constitutionally barred from even trying to clean up the political process. What a disgrace. I did not particularly enjoy the state of the Union, but the Court deserved a public rebuke. These philosopher-kings issue their decrees from relative anonymity and it was nice to see them squirm.

[Tye]

It's ironic that this court packed by conservatives disavowing judicial activism, now practices the same activism when in the interest of the rich and powerful. This court is all about consolidating the ill-gotten gains of the Bush years and sticking it to the middle class. FDR's court-packing scheme is described as "unsuccessful", but ultimately it was successful in that the 1937 court backed down and allowed FDR to pass needed legislation.

[Pam Bishop]

The President could not have overlooked 'Citizens United v. FEC'. It is a decision that is momentous and frightening for the viability of our democratic system of government. In the context of this age of sophisticated communications it rivals any other decision by the Supreme Court in American history for its potential impact on Constitutional law. It opens the door wide for oligarchy.

It is also frightening in what it says about the mental capacity of the majority justices: they have generalized a fiction acknowledged in law for a limited purpose and within a limited area of economic activity to encompass the whole basis of our political organization.

[Michael D. Baker]

Thank God that not every branch of our government is caving in to Obama's socialist left. It is refreshing to see one of the 3 branches of government uphold our constitution.

[buy r4ds]

Federal Election Commission stepped in and banned its distribution, ruling that the movie was the equivalent of a campaign ad attacking a candidate. Because the film was made partly with corporate contributions, the commission ruled it was electioneering communications subject to restrictions under campaign finance law.

[Joe]

What did Obama say about the courts? I missed that part.

[Hilary]

Alito is a traitor.

[ep]

BHC, I didn't realize that granting corporations the same rights as citizens was included in the "ideas of our great nation." Thanks for the update, I'll go look for it in the Constitution!

[Sadie]

I think your researcher should take a closer look at FDR's 1937 State of the Union speech. While its true that he did not mention the "Supreme Court" by name, he was directly critical of the "Judiciary" and the "Courts" (i.e., the "third branch of government" referred to in the article) insofar as they were frustrating the efforts of the Executive and Legislative branches to address the Great Depression.

[BHC]

The court hit the nail on the head again, and I'm thrilled that Obama mentioned it in his address. Ever since the Roberts confirmation hearings, I took an interest in the court, and have been reading decisions in my free time. They have done some amazing things recently, and its encouraging to see that one branch of our government is still focused on preserving the ideas of our great nation, rather than pursuing some state sponsored Utopian fantasy. Even though Obama's comment was a criticism, putting some media spotlight on the court's recent rulings will hopefully lift up the spirits of the concerned (freedom loving) masses.