Intimidation Today, Leaks Tomorrow?

by Ed Whelan

As Randy Barnett observes, “Ever since the oral argument [in the Obamacare case], progressive commentators have been engaged in a series of rearguard litigation tactics designed to intimidate or threaten the Court with dire political consequences should it fail to uphold legislation that they strongly favor.” Leading political actors—including, in his notoriously clumsy way, President Obama and, just last week, Senate Judiciary Committee chairman Patrick Leahy—have joined the fray, with hyperbolic pronouncements about how “firmly rooted” (to use Leahy’s phrase) in Supreme Court precedents the individual mandate supposedly is. On the legal substance, Barnett counters:

If the Supreme Court invalidates the individual insurance mandate, it need not call into question any other law that has ever been passed in the history of the United States. Why? Because the Congress has never before exercised its Commerce Power to impose a requirement on the American people to enter into a contract with a private company, upon pain of a penalty payable to the IRS. All the Court need do is confine Congress to the powers it has always exercised, including all the powers it exercised since the New Deal which also includes all the powers that were upheld by the Warren Court. A decision to invalidate would be the most minimal of minimalist decisions as it would apply to one law, and only one law.

Further, on the optics of judicial independence, Barnett soundly observes, “If the justices are perceived by the public as yielding to this overtly political … onslaught, it would fatally undermine the independence of the Supreme Court.” 

In this regard, I’ll add that one unintended effect of Jeffrey Toobin’s (badly flawed) revelations about the behind-the-scenes goings-on in the Citizens United case ought to be to undermine the Left’s ongoing efforts to intimidate the justices on the individual mandate. Specifically, it’s reasonable to assume that a year or two from now (if not sooner) some reporter will provide the “inside story” of what happened at the Court. And little could be more damaging to the reality or perception of the Court’s independence than evidence that a justice changed course from his vote at the post-argument conference in apparent response to the intimidation campaign.

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