Campaign for the Court on Health Care

Back in late May, columnist George Will wrote about the treatment of Supreme Court chief justice John Roberts by progressives. He said, "They are waging an embarrassingly obvious campaign, hoping he will buckle beneath the pressure of their disapproval and declare Obamacare constitutional." Many others made a similar observation. Will concluded, "Such clumsy attempts to bend the chief justice are apt to reveal his spine of steel."

Oh, that he were correct! But no, it appears as if this campaign was successful, according to CBS:

But Roberts pays attention to media coverage. As chief justice, he is keenly aware of his leadership role on the court, and he also is sensitive to how the court is perceived by the public. 
There were countless news articles in May warning of damage to the court - and to Roberts' reputation - if the court were to strike down the mandate. Leading politicians, including the president himself, had expressed confidence the mandate would be upheld. 
Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint. 
It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, "wobbly," the sources said.

The gist of this campaign was that a ruling against Obamacare would delegitimize the court, turning it into an ideological body. If the court didn't defer to the legislative branch, people would lose confidence in it forever. They sensed that Roberts' concern for the reputation of the court, evidenced by his pledge during his confirmation hearings to move towards greater agreement on the court, was his Achilles' heel. Never mind the fact that the court is far more popular than Congress, and Obamacare was an unpopular bill that passed only due to the employment of various types of chicanery. But it sounds like these arguments played at least some role in Roberts' ruling on Obamacare. Rush Limbaugh the other day compared this to the instructions jurors get from a judge about not reading news coverage of the case at hand. This is exactly why judges say that.

What really delegitimizes the court is ridiculous rulings, like the tortured reasoning that the individual mandate is not allowed under the Commerce Clause but is allowed under the taxing authority. Thus, the mandate is not permissible, but it is. And then there's the whole issue of whether it is a tax, or whether it isn't, which depends on who you ask and on what day of the week. This is reminiscent of the idea that one can find rights  that stem from "penumbras" and "emanations" from the Constitution.

What this ruling means is that, next time a big case comes up, the media will once again conduct a full-court press to tilt the ruling towards the desired liberal outcome. They will be joined by prominent Democratic Congressmen and Senators, and it will be disgusting and pathetic. But they know full well that it just might work.



  1. If you really think that John Roberts ruled the way he did because (and only because!) of media pressure, then that means the president you voted for made an incredibly crappy choice for Chief Justice. It's also funny that you shoot down the argument about the court deferring back to the legislative branch. I remember when "judicial activism" was something Republicans didn't like!

  2. I didn't say the pressure was the only reason, just that it played a part. Also, I still don't like judicial activism, which is when courts make law, whether they do so by upholding laws or nullifying them. Striking down acts of Congress is not activism if those acts are not grounded in the Constitution.

  3. Well, if media pressure played a part in Roberts' decision, that's on him. That's why he has a lifetime post, so he doesn't have to worry about that kind of thing.

    You state "What this ruling means is that, next time a big case comes up, the media will once again conduct a full-court press to tilt the ruling towards the desired liberal outcome." Now, leaving aside the liberalness of Roberts' ruling (questionable, since the mandate is a protection for corporations that was invented by a conservative think tank, and was upheld in a ruling that limits the power of the Commerce Clause), I'm not sure what you're arguing for. Pundits, opinion writers, and politicians on both sides advocate for their ideas, on every issue, all the time. What makes this one instance "disgusting and pathetic"?

  4. What I am saying is, the court's rulings shouldn't depend on what pundits/politicians think (especially when, like may be the case here, they depend solely on what the East Coast media elite thinks). The lifetime tenure is supposed to *insulate* justices from political and other pressures. If the opinion writers at NYT and WaPo are actually having an influence on judicial rulings, those rulings can only be made worse. It's not much different than when your mom tells you "it doesn't matter what other people think."

  5. And what I'm saying is, if the court's rulings depend on what the media thinks, that's a failing by the individual justice. The opinion writers at NYT and WaPo, like Rush Limbaugh and George Will and everyone at Fox News, are paid to put their views out there. That's their job.

    I suppose my larger point here is that if you're angry about Roberts' ruling, be angry at Roberts. He is insulated; he doesn't have to do anything he doesn't believe in. If you're directing your frustration at people who may have influenced his opinion, then you're arguing against free expression.

  6. Oh, I agree with you there.