The Democrats’ Pressure Campaign Against the Supreme Court: Will it Work?

by David French

Yesterday’s rhetorical volleys against the Supreme Court were hardly subtle. There’s a pressure campaign now underway, an effort to verbally bully the Supreme Court into the “right” ruling in the Obamacare litigation. In fact, some on the left openly admit their tactics:

Nan Aron, president of the Alliance for Justice and a prominent advocate during Supreme Court confirmation battles, said Obama and Democrats have made it clear that they would fiercely criticize a ruling against the healthcare law.

“I do think the statements by some of the senators and the president are serving notice to the court that, frankly, if the court does overturn the law, in essence, the court will become a political football in the election,” Aron said.

“I wouldn’t have said that before of the president’s comments. By virtue of the fact that he spoke out, it does serve notice: Think twice before throwing out this baby. It will be viewed more as a political act,” she added. 

The language and arguments are clumsy (Calling the judges “unelected” is hardly insulting, and calling into question Social Security and Medicare, like Senator Schumer did, is pure legal nonsense), but the goal is clear: Make the justices feel like their legacy is at stake.

Will it work? Almost certainly not, but it’s not because justices aren’t human and aren’t concerned about their legacy. Anyone would be, and concern for a legacy is overall a good thing — leading justices to develop jurisprudential philosophies rather than merely skip from outcome to outcome, molding their reasoning, ad hoc, case by case. But justices are concerned not merely with personal professional reputation, but also with the reputation of the Court as an independent constitutional force — influenced by the law and legal arguments, not by the cries of protesters or the anger of politicians. One of the prime purposes of judicial review and an independent judiciary in a constitutional republic is to provide a check against even majority opinion when that opinion leads to unconstitutional legislation.  

In my experience, federal judges are more likely to be angered than intimidated by direct attacks from politicians and pressure groups. They are “unelected” by design of the Framers, and that lifetime appointment gives them exactly the level of independence the Framers desired. Moreover, this is hardly the first time that the justices have faced high-stakes litigation, and it won’t be the last.  

As I listen to President Obama, Senator Schumer, and others, I hear repeats of the legal arguments the Court already found wanting at oral argument. Will repeating simplified versions of those arguments before reporters or even angry crowds somehow make them more persuasive? Hardly. In fact, it merely reaffirms their weakness.

The Corner

The one and only.