George Will writes about the left’s laughable attempt to “put the squeeze” on Chief Justice Roberts in the Obamcare case. Liberals are, in Will’s words, “waging an embarrassingly obvious campaign, hoping he will buckle beneath the pressure of their disapproval and declare Obamacare constitutional.”
It’s a familiar tactic, used in school cafeterias across the land: If you do X (here, strike down Obamacare), we’ll make sure everybody knows you’re Y (here, a hypocritical right-winger). But if you don’t do X, you can be our friend.
I don’t know how the Chief Justice will vote in the Obamacare case, but I do know he’s not going to be “squeezed.” This is the Supreme Court, not middle school.
Remember too that Chief Justice Roberts wrote the following line in a case challenging the imposed racial balancing of school populations: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Few statements could have invited greater left-wing disapproval and ridicule than this truism. Its author is not a jurist who worries about what leftists make of his decisions.
In addition, the Chief Justice has drawn biting criticism from no less than Justice Scalia, who once accused him of “faux judicial modesty.” It’s likely that Roberts has considerably more respect for Scalia than he has for Sen. Patrick Leahy and Prof. Jeffrey Rosen, two who are “squeezing” him now. Yet, Roberts seems to have been undaunted by Scalia’s criticism.
Prof. Rosen relies for his squeeze play on comments the Chief Justice has made about the desirability of decisions that are unanimous or nearly so. But the current Supreme Court contains four liberal Justices who basically vote as a bloc in almost all of the important controversial cases. Accordingly, the only way to avoid 5-4 decisions in such cases is for several Justices (Roberts alone wouldn’t be sufficient) to accede to the outcome desired by the liberal bloc. This isn’t so much a squeeze play as it is a hustle.
At a recent Federalist Society event, I asked Prof. Rosen, more rhetorically than out of curiosity, what decision he thought could be written in two major cases he discussed that might command even as many as seven votes from the Court. The two cases were the challenge to Obamacare and a major affirmative action case. Rosen engaged my question with respect to the affirmative action case, suggesting a possible way for the Court to reach consensus, but admitting that it wasn’t likely to happen. On Obamacare, Rosen passed. There is no consensus decision to be reached, and no “super-majority” is required in any event.
Chief Justice Roberts is known to have a lively sense of humor. I suspect he’s having a good chuckle at Leahy, Rosen, etc. They insult his intelligence, but comically so.
STEVE adds: I was seated at dinner next to Rosen a couple of weeks ago, and decided to have some fun with him. Aside from giving him grief about drinking white wine and having fish as an entree while the rest of us mostly went with red meat/red wine, I suggested that the favorite liberal game theory of the outcome of the case–whereby Roberts flips in the event of a 5 – 4 vote to uphold to join the upholders to make it 6 – 3 so he could write the opinion and confine further damage to the Constitution–might be exactly backwards. If Roberts and Kennedy join a 5 – 4 vote to strike down the entire act, perhaps Sotomayor might flip to make a 6 – 3 vote on the condition that the opinion only strike down the mandate and leave the rest of Obamacare intact. Rosen was incredulous at the suggestion, saying , “Oh no, the four liberal votes are solid!”
Well maybe so. But one aspect of the oral argument that people have overlooked is the fact that if the Court only strikes down the mandate, there are other aspects of Obamacare that can still be litigated and might well come back to the Court again and again piecemeal. Do they want to keep having to wrestle with this turd of a tar baby? They haven’t liked how all the hair-splitting decisions on campaign finance cases and affirmative action have kept the issue coming back over and over again. I continue to lean toward thinking there are five votes to strike the whole thing down and get it over with.
Anyway, nice to see that the Power Line staff can tag-team Rosen.