If you have been following the opinion pieces and the news coverage of King v. Burwell in the media, you’ve probably noticed the Left’s shameless lobbying for Chief Justice Roberts’ vote.
This is no surprise, because the Left has long believed that extra-legal pressure on the Chief works.
We first saw this level of media targeting the Chief in the last major Obamacare case to reach the Court, NFIB v. Sebelius, between the oral arguments and the decision. Many people were perplexed by the timing of their media push, since the justices had already voted on the case once by the time many of the pressure pieces came out. But after the Court handed down its surprise decision in June, with the Chief Justice embracing a novel legal theory to salvage a law he agreed was otherwise unconstitutional, several credible sources claimed that Chief Justice Roberts had in fact switched his vote at the last minute.
Thus, it appeared to many that the Left’s political pressure had worked.
As you can imagine, the belief that the Chief can be manipulated has sparked a rash of targeted op-eds and articles echoing liberal talking points. Some take the charmingly circular line that the Chief should change his vote because of political pressure, lest a vote applying traditional legal principles itself be perceived as bowing to political pressure. Others suggest that the case is so simple that no honorable court could possibly decide against the government (tell that to the three federal judges who have ruled against the government already, along with the three Fourth Circuit judges who acknowledged it was a close case).
Still others have resorted to name calling, threatening the Chief with being perceived a “conservative activist.”
And then there is the good old-fashioned flattery. I mean, writing things like “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” and “it’s difficult to imagine a legal mind like Roberts’ agreeing with an argument as weak as the one the plaintiffs have offered?” Nobody doubts the Chief’s intelligence, but give me a break.
Appealing to a perceived swing vote on a court is a classic legal technique, of course, but the place for that is in the briefing. At the Supreme Court level there has been ample opportunity to make those kinds of points in amicus briefs, and sure enough, pro-government amicus briefs have not shied away from relying on every CJR opinion they can muster (even when it’s obvious what they’re doing), as well as emphasizing the-sky-is-falling type consequentialist arguments over legal ones. But public pressure, especially when it’s based on irrelevant non-legal and ad hominem arguments, shouldn’t be part of the justices’ analysis of the case.
Not only is bowing to this type of pressure bad on principle, but it will heighten the perception of a politicized Court.
In light of the Left’s lobbying, a vote by the Chief Justice for the government is going to be perceived as resulting from political concerns regardless of the reasoning. Every instance of apparent responsiveness to outside pressure will then ratchet up the pressure in subsequent cases. The government and their allies have already concluded that their odds of victory increase if they repeat the same techniques that seemed to have worked in NFIB v. Sebelius; giving in to such pressure only encourages more of the same.
This is why the Court must be scrupulous to eschew decisions based on non-legal considerations, even well-intentioned ones like appeals to the Court’s own legitimacy. At the end of the day, the Court’s true legitimacy derives not from plaudits from pundits and journalists but from the justices fulfilling their oaths to uphold the Constitution and to faithfully interpret the nation’s laws.