The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Back in May 2012, after the progressive intelligentsia had launched its "Disdain Campaign" against the conservative justices in general and Chief Justice Roberts in particular, but before the Supreme Court announced its decision, I posted here "Another Switch in Time?" in which I wondered
whether President Obama, Senator Leahy, and pundits like Jeff Rosen have now put Chief Justice John Roberts in the same position as FDR put Justice Owen Roberts. Had the Chief Justice already provided the fifth vote in conference to uphold the ACA, and had these critics quietly respected the deliberations of the Court after the case was submitted, nearly everyone would have accepted that Chief Justice Roberts' decision to uphold the ACA was motivated by legal rather than political concerns. Now, however, if the Chief Justice rules to uphold the ACA after all these nonlegal pleas and threats, he will always be suspected by both supporters and opponents of the ACA of having changed his vote in response to this political pressure. As with Justice Owen Roberts' vote, the supporters of the law will cheer and the opponents will complain, but both groups will have reason to believe that Chief Justice Robert's decision reflected political considerations rather than his considered legal judgment in a close case. And, because Supreme Court deliberations are secret, he cannot defend himself by revealing that he did not in fact change his vote after conference.
Now that we have reason to believe that the Chief Justice Roberts did change his vote after the progressive onslaught, the left has been encouraged to think that its pressure worked, and might work again in King v. Burwell. But this time, they aren't waiting until after oral argument to launch their political lobbying campaign. Instead, in advance of oral argument, they are making a preemptive appeal to the Chief Justice with varying degrees of subtlety: In Supreme Court chief justice likely to back healthcare law," Brianne Gorod of the Constitutional Accountability Center veils the threat to "the legitimacy of the court" with flattery (emphasis added). First the flattery:
There's one very good reason to think the chief justice will rule for the government again: He's too good a lawyer to do otherwise.
Then the threat in the form of "some have said":
There's already been a great deal of speculation about why Roberts might rule for the government. Some pundits and court watchers have pointed out that a ruling for the plaintiffs in this patently partisan attempt to gut the Affordable Care Act might impair the legitimacy of the court. Others in the legal and business communities have noted that a ruling against the government would result in significant chaos and disruption to insurance markets in the affected states because the tax credits are necessary for the law's other market reforms to work properly.
Then the flattery again:
These points are both right. But if the chief justice votes for the government, as he should, the reason may be far simpler: He's too good a lawyer to do otherwise.
The Washington Post's Robert Barnes reports on this potential reaction in Obamacare threatens to end John Roberts's dream of a nonpartisan Supreme Court (emphasis added):
[S]lowly and quietly, Roberts is the one trying to build its legacy. He sees it as somehow exempt from the partisan fugue that long ago enveloped Washington. Justice Stephen G. Breyer has worried that the public might see him and his colleagues as "nine junior-varsity politicians"; public approval of the Supreme Court is falling. But while all of the justices bristle at the notion of a political court, the eponymous head of the Roberts court has the most to lose. . . . It is a perception [of partisanship] that, despite Roberts's zealous labors, the court could soon reinforce, at least on the left. "A 5-to-4 decision invalidating the premium tax credits" in King v. Burwell "would seriously call into question the legitimacy of the court," Tim Jost, a Washington and Lee University law professor and health-care expert, said in a video distributed by the liberal Center for American Progress. "I think it's going to be [decided] pretty transparently for political reasons."
Yes, the "dream of a nonpartisan Supreme Court" will be dashed if this is a 5-4 decision to invalidate an IRS ruling on the ground that it deviated from the text of the Affordable Care Act. So he better decide this "right" or the decision will be viewed as partisan—wholly apart from the merits or because, as Ms. Gorod tells us, "it's difficult to imagine a legal mind like Roberts' agreeing with an argument as weak as the one the plaintiffs have offered." This illustration that accompanies the story shows the beleaguered Chief Justice:
Then there is Is Supreme Court's chief justice ready to take down ObamaCare? by Peter Sullivan at The Hill:
A broader potential factor in Roberts's decision is his interest in the legitimacy of the court in the eyes of the public and his worry about appearing too partisan. "We are not Republicans or Democrats," Roberts said in a speech in September. "I'm worried about people having that perception."
To assist the Chief Justice in burnishing his legacy, The Hill helpfully provides a Poll: Majority wants ObamaCare subsidies to survive Supreme Court. Then there is the ThinkProgress's Ian Millhiser with his characteristically fervid In Defense of Court-Packing: When the Supreme Court willfully misreads the Constitution, FDR's plan doesn't seem so bad in Slate:
The basic human rights protected by the Constitution-the right to free speech, the right to a fair trial, the right to be free from unjust discrimination, and so forth-are essential freedoms. And, as the darker moments of American history demonstrate, these rights will not always be respected by elected lawmakers acting without supervision. Which is why it would be deeply tragic if the justices ever force another president to make the same choice that Roosevelt faced. Sadly, there are early signs that the Supreme Court's present members may be willing to repeat the sins of the past, arbitrarily ignoring both the text of the law and their own previous decisions in service of a political agenda.
What is the latest "early sign"? Why King v. Burwell of course.
A decision favoring the plaintiffs in King would mirror past decisions striking down laws against child labor. It would inflict needless cruelty on millions of the most vulnerable Americans, and it would do so with no basis in law. It would also raise serious doubts about the impartiality of the Supreme Court. Undermining Obamacare is the Republican Party's top policy priority, and all five of the justices who are most likely to vote with the King plaintiffs are Republican appointees. If the justices are willing to cross this line once, it is likely that they will be willing to cross it again and again. A future president, in other words, could confront a dilemma that no president has faced since Roosevelt.
Yes, Millhiser's whole "court packing" threat in the face of "willfully misreading the Constitution" was a lengthy build up to none other than this non-constitutional case concerning whether an IRS regulation is a faithful interpretation of the actual words of the ACA. In his piece, Millhiser relies heavily on this column by the guardian of the Supreme Court's legitimacy, Linda Greenhouse: The Supreme Court at Stake Overturning Obamacare Would Change the Nature of the Supreme Court.
The court has permitted itself to be recruited into the front lines of a partisan war. Not only the Affordable Care Act but the court itself is in peril as a result. . . . [W]ill the Affordable Care Act survive its second encounter with the Roberts court? I said earlier that this case is as profound in its implications as the earlier constitutional one. The fate of the statute hung in the balance then and hangs in the balance today, but I mean more than that. This time, so does the honor of the Supreme Court. To reject the government's defense of the law, the justices would have to suspend their own settled approach to statutory interpretation as well as their often-stated view of how Congress should act toward the states. I have no doubt that the justices who cast the necessary votes to add King v. Burwell to the court's docket were happy to help themselves to a second chance to do what they couldn't quite pull off three years ago. To those justices, I offer the same advice I give my despairing friends: Read the briefs. If you do, and you proceed to destroy the Affordable Care Act nonetheless, you will have a great deal of explaining to do—not to me, but to history.
So, once again, the left is saying to the Chief Justice, "nice little Supreme Court you got here. Too bad if anything was to happen to it." Only 5-4 decisions for the outcomes the left like—like NFIB v. Sebelius—are "legitimate." 5-4 decisions the other way imperil "the court itself." By making this a personal appeal to Chief Justice Roberts, either to side with them or pay a political price, they once again risk tainting a ruling in their favor as being based on the very political considerations they themselves urge upon the Chief Justice. And the outcome of the last case has only encouraged them to run this play as long as it appears to work. [I earlier pressed "publish" before finishing my editing of this post. I have now corrected some glitches in the previous version, none of which go to the substance of the post.]