Several respected conservatives, including my colleague Kathleen Parker, are writing on the extraordinarily crass public onslaught from liberals such as Jeffrey Rosen and Sen. Pat Leahy (D-Vt.) to sway Chief Justice John Roberts in the Obamacare case.
Rosen and Leahy, of course, are merely following the president’s lead. Because they are light (okay, devoid) of legal arguments, the left has dropped any pretense of intellectual integrity and instead makes entirely political arguments. Rosen demands that Roberts look to the politics of the decision:
In addition to deciding what kind of chief justice he wants to be, he has to decide what kind of legal conservatism he wants to embrace. Of course, if the Roberts Court strikes down health care reform by a 5-4 vote, then the chief justice’s stated goal of presiding over a less divisive Court will be viewed as an irredeemable failure. But, by voting to strike down Obamacare, Roberts would also be abandoning the association of legal conservatism with restraint—and resurrecting the pre–New Deal era of economic judicial activism with a vengeance. This is the era that Judge [Janice] Brown and Randy Barnett yearn to revive: a time when crusading judges struck down progressive economic regulations in the name of hotly conservative economic doctrines that a majority of the country didn’t favor. We’ve seen this script play out before, and it didn’t end well for the Court.
The Obamacare decision, as we have reiterated many times, is jurisprudentially unrelated to the 14th Amendment substantive due process cases that Rosen invokes. It is obviously the obligation of the Supreme Court to strike down legislation emanating from the political branches that violate the Constitution’s restrictions on those branches.
Randy Barnett, one of the advocates in the case for striking down Obamacare, writes:
Rosen’s claim that, unless the conservative justices uphold this new and dangerous power, they are betraying their conservatism is the height of presumptuousness. If accepted, Rosen’s claim that five justices cannot legitimately invalidate a “big” law unless some of other four go along would create a new, unprecedented, and strictly politically-based filibuster power by a minority of justices. To equate the invalidation of this deeply unpopular law with the adoption of a economic doctrines “that a majority of the country didn’t favor” is to turn constitutional history on its head. If the justices are perceived by the public as yielding to this overtly political media onslaught, it would fatally undermine the independence of the Supreme Court.
I must say it takes extraordinary daring to cast aside all legal arguments and to argue politics to the very justice who famously explained:
Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them.
The role of an umpire and a judge is critical. They make sure everybody plays by the rules.
But it is a limited role. Nobody ever went to a ball game to see the umpire. . . .
I have no platform.
Judges are not politicians who can promise to do certain things in exchange for votes.
I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.
Let’s see what the left is asking Roberts to do. It’s quite a Faustian bargain it proposes..
The liberal advocates ask Roberts to knuckle under to the president’s public intimidation of the Supreme Court, begun when he attempted to humiliate publicly the justices on Citizens United and continuing up to his public scolding. They ask he accept the Supreme Court as an agent of the executive branch, ready to do its bidding.
They ask Roberts to embarrass himself before fellow justices, who already know Roberts’s views of the case. They’ll certainly see if Roberts took a fall. Rosen et. al would have the chief justice sacrifice, perhaps permanently, the respect of his colleagues who know all too well the intimidation game afoot.
The left would need Roberts to drag a fellow colleague, Justice Anthony Kennedy, along for cover — for it would be untenable for the chief justice to be lonely vote-changer. Kennedy’s robust and insightful questioning in oral arguments, in which he captured the essence of Obamacare (i.e. it would fundamentally alter the relationship between the individual and the federal government), would have to be swept aside.
The Obama-Leahy-Rosen tag team would ask that Roberts subscribe to some alternate political reality in which Obamacare is very popular and the public would be shocked and rise up in anger that the Supreme Court would overturn the “popular will.” (They must assume Roberts isn’t aware more than 70 percent of the public think the law is unconstitutional.)
The pleaders would ask Roberts to adopt the left’s contention that conservative justices who adhere to the meaning and text of the Constitution can’t all vote one way for fear it will “look bad,” but liberal justices are free to march uniformly as they see fit.
In essence, the left asks Roberts, knowing he believes the law to be unconstitutional, to nevertheless switch sides and thereby violate his oath of office. That’s the one where he swore to “administer justice without respect to persons, and do equal right to the poor and to the rich.” And without regard to which side whines the loudest.
I think the left asks waaay too much. The chief justice, I am certain, doesn’t want to go from umpire to the judicial equivalent of the 1919 Black Sox.