Was Supreme Court John Roberts intimidated by President Obama and his allies into writing a startling, incomprehensible opinion that preserved Obama’s signature achievement as president?
Is it possible that the august corridors of the Supreme Court were trampled by Chicago-style political tactics, that the Constitution was shredded by the dog-eared playbook of bullying activist Saul Alinsky, the guiding light of Obama’s political operation?
There is no way to prove that Chief Justice John Roberts was intimidated into upholding Obamacare as constitutional, no way to conjure his thoughts. Even Roberts may not fully understand why he made the decision he did.
But there is evidence to suggest that the brewing outcry that the Court had become a political weapon run by a cabal of Republican legal hacks – the liberal Justices, who walk in lockstep, were under this theory clinging united to “principle” – weighed on Roberts, along with the likelihood that Obama would make this a theme of his reelection campaign.
Back on April 2, Obama helped ignite the recent focus by politicians and commentators on the “politicization” of the Supreme Court when he menaced:
Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.
Remarks that could have been written by a Brooklyn Wise Guy: I’m confident you’ll do the right thing, see?
All of this was theater. There’s nothing “unprecedented” or “extraordinary” about the Supreme Court overturning a law, and Obamacare was not passed by a “strong majority.” What was extraordinary was the sight of a president, standing in the Rose Garden, leaning on the Supreme Court.
Obama had inappropriately gone after the Court before, of course, criticizing the Justices to their faces during the 2010 State of the Union for having “reversed a century of law to open the floodgates for special interests” in the Citizens United case and calling on Congress to “pass a bill that helps to right this wrong.”
Is there anyone who seriously doubts that Obama would have made denigrating the Supreme Court – and promoting himself to fix it with second term appointments – a central plank of his campaign?
The first suggestion that Roberts may have been influenced by all this is that it appears he may have changed his mind after initially supporting the four conservatives who voted to strike down Obamacare.
The Wall Street Journal writes today:
One telling note is that the dissent refers repeatedly to “Justice Ginsburg’s dissent” and “the dissent” on the mandate, but of course they should be referring to Ruth Bader Ginsburg’s concurrence. This wording and other sources suggest that there was originally a 5-4 majority striking down at least part of ObamaCare, but then the Chief Justice changed his mind . . .
The political class and legal left conducted an extraordinary campaign to define such a decision as partisan and illegitimate. If the Chief Justice capitulated to this pressure, it shows the Court can be intimidated and swayed from its constitutional duties.
And Roberts, indeed, would be uniquely susceptible to such pressure.
Roberts is a creature of Washington and likely less immune than some of the other Justices to its Zeitgeist. He came to Washington 30 years ago, after graduating from Harvard Law School, and has been here ever since.
But Roberts is also a creature of the Supreme Court.
He’s been Chief Justice now for almost seven years. Nut what’s less well known is that he basically started his career at the Court, clerking for then-Associate Justice William Rehnquist from 1981-1982. He worked for George H.W. Bush as Principal Deputy Solicitor General from 1989-1993. Afterward, in private practice, he argued some 39 cases before the Supreme Court.
The chatter in the last 24 hours that Roberts may have been seeking to protect the Court where he’s toiled for a major portion of his professional life makes sense.
Especially when you consider his opinion in Obamacare case.
Roberts imagined passages in the law that weren’t there. He called the penalty for failing to sign up for Obamacare a tax, when it expressly was not a tax. No lower court accepted the argument that it was. Even Obama’s Solicitor General spent little time trying to argue this angle.
The Chief Justice’s opinion is inexplicable in the absence of some other external factor intruding on his thinking. And that external factor may well have been the president and the mobs who threatened to trash Roberts’ Court if it killed their beloved Obamacare.
It’s possible the Supreme Court didn’t rule. The mob ruled.