Intimidation Today, Leaks Tomorrow?

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.

Most Popular

Law & the Courts

Obstruction Confusions

In his Lawfare critique of one of my several columns about the purported obstruction case against President Trump, Gabriel Schoenfeld loses me — as I suspect he will lose others — when he says of himself, “I do not think I am Trump-deranged.” Gabe graciously expresses fondness for me, and the feeling is ... Read More
Politics & Policy

Students’ Anti-Gun Views

Are children innocents or are they leaders? Are teenagers fully autonomous decision-makers, or are they lumps of mental clay, still being molded by unfolding brain development? The Left seems to have a particularly hard time deciding these days. Take, for example, the high-school students from Parkland, ... Read More
PC Culture

Kill Chic

We live in a society in which gratuitous violence is the trademark of video games, movies, and popular music. Kill this, shoot that in repugnant detail becomes a race to the visual and spoken bottom. We have gone from Sam Peckinpah’s realistic portrayal of violent death to a gory ritual of metal ripping ... Read More
Elections

Romney Is a Misfit for America

Mitt’s back. The former governor of Massachusetts and occasional native son of Michigan has a new persona: Mr. Utah. He’s going to bring Utah conservatism to the whole Republican party and to the country at large. Wholesome, efficient, industrious, faithful. “Utah has a lot to teach the politicians in ... Read More
Law & the Courts

What the Second Amendment Means Today

The horrifying school massacre in Parkland, Fla., has prompted another national debate about guns. Unfortunately, it seems that these conversations are never terribly constructive — they are too often dominated by screeching extremists on both sides of the aisle and armchair pundits who offer sweeping opinions ... Read More
U.S.

Fire the FBI Chief

American government is supposed to look and sound like George Washington. What it actually looks and sounds like is Henry Hill from Goodfellas: bad suit, hand out, intoning the eternal mantra: “F*** you, pay me.” American government mostly works by interposition, standing between us, the free people at ... Read More