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The Pushback Against The Left’s Attempt to Bully Chief Justice Roberts on ObamaCare Case



Wall Street Journal editorial:

“You can tell the Supreme Court is getting closer to its historic ObamaCare ruling because the left is making one last attempt to intimidate the Justices. The latest effort includes taunting Chief Justice John Roberts that if the Court overturns any of the law, he’ll forever be defined as a partisan ‘activist.’ … The most dishonest argument is the liberal media chant that overturning the law means overturning the New Deal era’s Commerce Clause precedents. This is propaganda. None of the plaintiffs advocated that any precedents be overturned, even though in our view some of those cases deserve to be overturned. Paul Clement and Michael Carvin, who argued for the plaintiffs before the Court, explicitly denied any such desire. … We doubt the High Court will be intimidated by any of this, and the truth is that no Justice would be worthy to sit on the Court if he is. As Chief Justice Roberts said at his confirmation hearing, a judge should be a neutral umpire who calls legal balls and strikes fairly as he sees them. The Court’s reputation will be tarnished if it bows to the political distemper of the moment, not if it follows the Constitution.”


Kathleen Parker, Washington Post:

“Novelist John Grisham could hardly spin a more provocative fiction: The president and his surrogates mount an aggressive campaign to intimidate the chief justice of the United States, implying ruin and ridicule should he fail to vote in a pivotal case according to the ruling political party’s wishes. If only it were fiction. … Publicly chastising the court — and now taunting Roberts specifically — seems to have two purposes. One is to get under Roberts’s skin in the hopes that he’ll rule the ‘correct,’ if not necessarily ‘legally correct,’ way. Two is to lay the groundwork for declaring the court illegitimate if all or part of Obamacare is overturned.  Either way, it’s politics at its filthiest and is beneath the dignity of the court — and of the White House. Unfortunately for Roberts, it’s up to the chief justice to hold the bar high.”


Randy Barnett, Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center:

“The justices know what many readers of the New Republic do not: Nowhere did the challengers to the ACA ever base their claim on ‘conservative economic doctrines.’ No. Where. Our case has always been simply that this claim of federal power exceeds any that has ever previously been authorized by the Supreme Court, and that it is an uncabined, unnecessary and dangerous power to recognize for the first time.”


Stephen B. Presser, Raoul Berger Professor of Legal History at Northwestern University School of Law:

“In the face of this disappointing attempt to intimidate the Court, and, in particular, its Chief Justice John Roberts and its perpetual swing voter Anthony Kennedy, it will take some courage for the Court to do what is Constitutionally correct, and we can only hope that courage is forthcoming.  The individual mandate of the PPACA is the boldest attempt yet to dramatically expand the reach of Congressional power. And, simply stated, no one has been able to explain how, if the Congress can do this, any limits remain on its power. The Government attorneys defending the PPACA at the recent Supreme Court arguments were not able to limn any such remaining limits, and this is because there are none.”


Carrie Severino, chief counsel, Judicial Crisis Network:

“In Rosen’s world, avoiding 5–4 decisions at all costs is apparently a higher virtue than following the law. … First, it ignores the fact that the chief can only directly control his own vote and therefore would only be in a position to flip a 5–4 decision against the mandate to another 5–4 decision in favor of it. If Rosen is really concerned more about the vote counts than the ultimate results, both results would leave identical black marks on the chief justice’s record. To the extent that Rosen hopes the chief justice will engage in lobbying of his colleagues reminiscent of the Warren-era court, such a strategy is inherently limited. Even if the chief justice were able to articulate a narrow decision that avoided making any major constitutional ruling (and if there were an obvious route to such a ruling, it is hard to imagine another of the many parties and amici would not have hit upon it), a determined coalition of four liberal justices would still be in a position to foreclose a consensus result simply by rallying around a position they knew none of the conservatives would accept.”


Jennifer Rubin, Washington Post:

“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.”

Investors Business Daily editorial:

“Rosen contends that ‘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.. This was a favorite pastime of the late Sen. Ted Kennedy — instructing conservatives on the differences between acceptable and unacceptable versions of the political philosophy of which he was a mortal enemy. … Roberts’ thinking may not be as well-identified as that of Justices Scalia, Thomas, or even Alito. But we can be sure of this: He’s enough of his own man not to be cowed by politically motivated appeals — whether they come from a president or a lefty magazine.”


National Review editorial:

“The four liberal justices appear very likely to uphold the mandate, a fact that somehow does not lead to their description as partisans. For the justices who are prepared to consider whether the mandate is unconstitutional, the path of duty is clear: They should uphold the Constitution as best they understand it, explain their reasoning as well as they can, and let their critics and supporters have at it.”


Ilya Somin, associate professor of law, George Mason University:

“Claims that a decision striking down the mandate will undermine the Court’s “legitimacy” founder on the simple reality that an overwhelmingly majority of the public wants the law to be invalidated. Even a slight 48-44 plurality of Democrats agree, according to a Washington Post/ABC poll. Decisions that damage the Court’s legitimacy tend to be ones that run contrary to majority opinion, such as some of the cases striking down New Deal laws in the 1930s. By contrast, a decision failing to strike down a law that large majorities believe to be unconstitutional can actually damage the Court’s reputation and create a political backlash, as the case of Kelo v. City of New London dramatically demonstrated.”

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