Bench Memos

Left’s Attempts to Intimidate the Supreme Court in King: “First-Class Flummery”

Yesterday, Bloomberg’s Meg McArdle had a nice riposte to the Left’s attempts to sway the Chief Justice in advance of yesterday’s argument in King by pretending that the institutional legitimacy of the Supreme Court was at stake:

This is first-class flummery: What they really mean is that they will be very angry at the Supreme Court if the case goes against them. This is completely true. It is not completely true that the Supreme Court will somehow destroy itself, or its place in American society, if it offers a ruling that American liberals don’t like. I realize that it may feel this way if you are an American liberal. But if the institution survived Roe v. Wade’s “emanations and penumbras,” and the sudden discovery after a couple of centuries that capital punishment violated the Constitution, it can certainly survive a narrow statutory case that overturns a still-unpopular program.


Are there situations in which one would be justified in withdrawing support for the Supreme Court, to declare that it has destroyed its own right to determine the shape of American law? Absolutely. But “The Supreme Court disagrees with me over the proper application of the two-part Chevron test to the Patient Protection and Affordable Care Act” does not even remotely fit the case for making these sorts of thinly veiled threats. Sane and sober adults should not talk this way. There are things even more important than Obamacare. Holding our country together is one of them.

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Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...


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