Bench Memos

Political Consultants Assail the Supreme Court

The parties in the blockbuster health-care case to be argued in two weeks will each have over 16,000 words of briefing in which to make their case about the constitutionality of the individual mandate. Amicus curiae filers can submit 9,000 words of further argument. But the government has one more quasi-brief in its arsenal: the New York Times.

On Monday the Grey Lady offered two examples of the opinion article–cum–amicus-brief genre, both in favor of the mandate. Adam Liptak penned an unusually skilled example, subtly appealing to Chief Justice Roberts. Another piece is even harder to categorize: an op-ed by Judge J. Harvie Wilkinson of the Fourth Circuit apparently aimed at cautioning the Supreme Court (read: Justice Kennedy) not to take the “activist” step of striking down the health-care mandate.  Such commentary by a sitting judge on a current case is vanishingly rare, given the ethics problems that it creates. But the New York Times, erstwhile crusader for stricter ethical guidelines for federal judges, saw fit to include Judge Wilkinson’s musings on the case as part of a growing parade of political consultants offering advice to the Supreme Court.

This type of back-seat-judging often makes for interesting pieces, but they tend to be substantively weak and sloppy. After all, they are opting out of persuading on the merits, so the political advice — to the extent that it hinges on substance and facts — probably has to be played a bit fast and loose.

Liptak was wise not to mention the words “mandate” or “severability”, two big terms in the upcoming health care court battle.  But his piece still reads like a political memo directed at Chief Justice Roberts. And if there is one thing that chafes at the justices, it is being lectured like schoolchildren about the dire consequences of their decisions.

My best interpretation of Liptak’s article is that he is cautioning Roberts that (1) the Obamacare case could be the most significant of his career, (2) a closely divided Court could affect the institution’s credibility, and (3) a decision striking down Obamacare would be a significant outlier, the likes we have not seen since the New Deal–era cases that triggered President Roosevelt’s court-packing plan.

Liptak is right about the importance of this case.  Regardless of how the case is decided, it will make every constitutional-law textbook as the landmark Commerce Clause case of this generation, if not the century.

While the credibility of the Court is obviously is a concern of the Chief Justice, it’s hard to see how Liptak’s comparisons to Bush v. Gore and Citizens United mean much.  Even after those highly controversial cases, the Court is more highly respected than any branch of government — and more highly respected than the press itself.

Liptak’s attempt to frame a decision against the mandate as out of the current legal mainstream requires ignoring a series of recent decisions constraining government power.  

As for Judge Wilkinson’s piece, he attempts to maintain a judicial balance on the issues, but ends up comparing a vote against the individual mandate with the judicial activism so often seen from the left that he rightly decries. Unfortunately, he fails to take into account the Court’s role in enforcing the constitutional provisions that are there — the words of the Commerce Clause, for example — just as much as it is to avoid making up things that are not. In this he may have lost his target audience, for to ignore the importance of enforcing constitutional boundaries is to ignore Kennedy’s take on liberty and constitutional structure.

In the run-up to the Supreme Court arguments on the health-care law, the march of political consultants will undoubtedly continue.  I would counsel the justices to spend the remaining weeks reading those thousands of pages of briefing, and to ignore the media’s unsolicited advice.


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