Jennifer Rubin: What the Left is Asking Chief Justice Roberts to Do

President Obama’s two statements urging the Supreme Court to uphold the Affordable Care Act came the week after the vote was presumably taken by the justices in conference.  Since then we have been subjected to a seemingly endless stream of pundits, professors, and politicians urging the Court for “nonlegal” reasons (see Ilya’s post here) to uphold the Act.  All of these statements presuppose that the conference vote was to invalidate the mandate, or there would have been no reason to speak now.  Hence, the specific pressure on Chief Justice Roberts by Senator Leahy and Jeff Rosen is implicitly urging him to change his vote from that which he cast in the conference. These thoughts were prompted by Jennifer Rubin’s lengthy post, What the Left is Asking Chief Justice Roberts to Do, this morning on the Washington Post’s Right Turn blog, where she concludes:

Let’s see what the left is asking Roberts to do. It’s quite a Faustian bargain it proposes.. The liberal advocates ask Roberts to knuckle under to the president’s public intimidation of the Supreme Court, begun when he attempted to humiliate publicly the justices on Citizens United and continuing up to his public scolding. They ask he accept the Supreme Court as an agent of the executive branch, ready to do its bidding. They ask Roberts to embarrass himself before fellow justices, who already know Roberts’s views of the case. They’ll certainly see if Roberts took a fall. Rosen et. al would have the chief justice sacrifice, perhaps permanently, the respect of his colleagues who know all too well the intimidation game afoot. The left would need Roberts to drag a fellow colleague, Justice Anthony Kennedy, along for cover — for it would be untenable for the chief justice to be lonely vote-changer. Kennedy’s robust and insightful questioning in oral arguments, in which he captured the essence of Obamacare (i.e. it would fundamentally alter the relationship between the individual and the federal government), would have to be swept aside. The Obama-Leahy-Rosen tag team would ask that Roberts subscribe to some alternate political reality in which Obamacare is very popular and the public would be shocked and rise up in anger that the Supreme Court would overturn the “popular will.” (They must assume Roberts isn’t aware more than 70 percent of the public think the law is unconstitutional.) The pleaders would ask Roberts to adopt the left’s contention that conservative justices who adhere to the meaning and text of the Constitution can’t all vote one way for fear it will “look bad,” but liberal justices are free to march uniformly as they see fit. In essence, the left asks Roberts, knowing he believes the law to be unconstitutional, to nevertheless switch sides and thereby violate his oath of office. That’s the one where he swore to “administer justice without respect to persons, and do equal right to the poor and to the rich.” And without regard to which side whines the loudest. I think the left asks waaay too much. The chief justice, I am certain, doesn’t want to go from umpire to the judicial equivalent of the 1919 Black Sox.

Read the whole thing here.