President Biden and Vice President Kamala Harris became the latest politicians to vocalize their stance on a pending Supreme Court decision, adding to a trend that started under President Obama and his defense of the Affordable Care Act, court watchers say.
Observers say it’s become common for executive branch leaders to opine on pending rulings from the judiciary due to the increasingly divisive political environment.
“The court should be independent and this certainly calls into question whether the court is making its decisions independently or under pressure from the other branches,” said Curt Levey, president of the Committee for Justice.
It’s not just the current administration, but also Mr. Obama and former President Donald Trump who used their bully pulpit to try to influence the justices.
In 2015, days ahead of the Supreme Court‘s ruling on the legality of Mr. Obama’s signature health care law, the president said millions of Americans had come to rely on the legislation.
“This is now part of the fabric of how we care for one another — this is health care in America,” Mr. Obama said at the time. “It seems so cynical to want to take health care away from millions of people.”
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He also had expressed optimism that the justices wouldn’t rule against his key accomplishment, according to reporting by The New York Times in June 2015. And he was right: About two weeks later, the high court upheld Obamacare.
“I’m optimistic that the Supreme Court will play it straight when it comes to the interpretation,” Mr. Obama had said. “If it didn’t, Congress could fix this whole thing with a one-sentence provision.”
Mr. Trump, too, would tout the high court as a means of upholding his agenda.
The 45th president was known for being critical of judges who smacked down his agenda, labeling them “Obama judges.”
When states moved to change election laws and requirements due to the COVID-19 pandemic, Mr. Trump blasted the justices for allowing Pennsylvania to count mail-in ballots postmarked on Election Day.
Republicans — and Mr. Trump himself — had challenged the results out of Pennsylvania over the change in election laws unilaterally by state officials during the pandemic.
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The justices, though, would not hear the claims.
“The Supreme Court decision on voting in Pennsylvania is a VERY dangerous one,” Mr. Trump tweeted on Election Day. “It will allow rampant and unchecked cheating and will undermine our entire systems of laws. It will also induce violence in the streets. Something must be done!”
Although the leaders’ comments do not present any legal problems, they have the appearance of trying to sway the bench.
“It was shocking when Obama did it 10 years ago. It seems less shocking now,” Mr. Levey said. “Maybe it’s a trend.”
Mr. Biden and Ms. Harris‘ statements come at a more unusual time, following an unprecedented leak.
They’ve been outspoken as the high court is readying to publish an opinion possibly overturning Roe v. Wade, the landmark 1973 decision giving women nationwide right to end a pregnancy.
Earlier this month following the leak of a draft opinion leaked to the press, Mr. Biden rattled the public when he said the justices would likely outlaw same-sex marriage and the right to use contraception if the opinion leaked was authentic.
“It’s not just the brutality of taking away a woman’s right to her body … but it also, if you read the opinion … basically says there’s no such thing as the right to privacy. If that holds … mark my words: They are going to go after the Supreme Court decision on same-sex marriage,” he said.
And Ms. Harris in a meeting last week with abortion providers said the high court had recognized a constitutional right for women — only to take it away roughly 50 years later. Like Mr. Biden, she warned that contraception and barring same-sex marriage would come next.
“The strength of our country has always been that we fight to move forward, that we believe in the expansion of rights, not the restriction of rights. So this, when and if it happens, will be an extreme step backward, and it represents a threat not just to women, but to all Americans,” she said.
Josh Blackman, a professor at South Texas College of Law, said the key moment for the comments from the current president and vice president comes down to timing.
“What makes the present moment so bizarre is we already saw the draft opinion,” Mr. Blackman said. “Harris is definitely elevating this trajectory to the next level.”