On pressuring the Supreme Court

John has written about how Clinton operatives attributed Chief Justice Roberts’ vote to uphold Obamacare’s individual mandate to political pressure spearheaded by President Obama. The claim appears in WikiLeaks documents.

There is little reason to believe that pressure exerted by Obama and his friends had anything to do with the Chief Justice’s vote. Roberts’ decision not to strike down Obamacare’s key provision was consistent with his long held preference for “judicial modesty” and his desire to protect the Supreme Court’s image.

Roberts did not need Democratic politicians and their pals in the media to explain to him the political implications of a Supreme Court decision killing Obamacare and the anti-Court backlash it would create (albeit mostly on the left; Obamacare was, and remains, unpopular with the public as a whole). This would have been evident to a person of considerably less intelligence than the Chief Justice.

Nor should WikiLeaks evidence that Team Obama (and later Team Clinton in the second big Obamacare case) attempted to influence members of the Court come as a surprise. The existence of the pressure was evident to us and to just about everyone else who was paying attention.

Still, the admission by key operatives that the president and others exerted pressure may make such pressure more routine and more intense. And even if I’m right that Chief Justice Roberts was not influenced, we cannot assume that such pressure will never work.

Pressure from the left is most likely to work on liberal judges. Assuming that Hillary Clinton wins this election, the Court soon will have at least five liberal (or worse) members. The key to transforming America by judicial fiat will then be to keep the liberal members in line.

I doubt that this will prove difficult. I’ve seen almost nothing that indicates an inclination by the four liberals now on the Court to stray from the reservation.

Justice Ginsburg provides a mini-illustration of what’s likely to happen in the event of straying. Recently, she said in a television interview that athletes who don’t respect the National Anthem are being “dumb.” When she came in for harsh criticism from left-wingers, she backed down.

Conservatives and Republicans can be expected to follow the Obama-Clinton model when it comes to trying to influence Supreme Court members. Fifty years ago, they achieved political gain at the expense of the leftist Warren Court. I don’t know that they expected the Court to moderate; those Justices probably were not for turning. In fact, some conservatives and Republicans may have preferred continuing to obtain political mileage from aggressively leftist decisions.

Going forward, I think conservatives certainly will want to influence Justices via pressure in big cases. This will be far more difficult for conservatives to achieve because the mainstream media will lionize Justices who do not “bow” to the “far right.”

However, one can imagine Justices being influenced by pressure from conservatives in, say, litigation involving national security. Justices concerned about their legacy and/or the Court’s standing will not want to be blamed for major terrorist attacks. It was one thing to grant victories to left-wing civil libertarians when the terrorist threat was receding under President Bush. It would be quite another to do so in a panicked America.

So far in this post, I have taken no position on whether trying to exert political pressure on Justices is a desirable practice. It seems clear that judges who adjudicate facts should be insulated from political and other pressure. When it comes to Supreme Court Justices telling us what the law is in cases of great import, I don’t see much of a problem with politicians speaking up about what’s at stake — including politically — in these cases.

Like Don Barzini, though, most Justices will know without being told.