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Demonizing SCOTUS: The OCare Precedent

When Chief Justice John Roberts rewrote ObamaCare from the bench in order to save it, most of the ramifications were immediately apparent. But there was one aspect of the stunt that as a member of the Supreme Court Roberts should have been sensitive to: precedent. Having caved to a public intimidation campaign from the president and his congressional allies (as well as the media) Roberts signaled that the way to get a conservative justice to discard his better judgment and rule against constitutional law was to impugn the court’s reputation in the public square.

Be mean to John Roberts and his friends, in other words, and you can have your welfare state for all he cares. This was among the most damaging effects of Roberts’s call back in 2012. And unsurprisingly, Democrats have learned their lesson. I wrote at the time that within days of the decision the media had gone back to bashing Roberts and the high court’s poll numbers had dropped. But Democrats had a found a well they were certain to return to in times of desperation. And as the Hill reports today, that time has come:

Senate Democrats and liberal groups are mounting a pressure campaign against the Supreme Court, hoping to influence future decisions by blasting conservative justices for alleged political bias.

The effort from the left also portrays the high court as an instrument rigged to help the wealthy, and is intended to energize Democratic voters and increase turnout in the midterm elections.

Some legal experts see the effort as akin to basketball or soccer players “working the ref” in a high-stakes game.

Critics say Democratic leaders used a similar strategy in 2010, when they piled on the court for striking down the ban on political spending by corporations in Citizens United v. Federal Election Commission.

Some court watchers speculated that Chief Justice John Roberts felt chastened by the angry reaction and sought to avoid another uproar, when he crafted the majority decision in 2012 that largely upheld ObamaCare.

“The left clearly tried to work the refs on the Affordable Care Act,” said Randy Barnett, a professor at the Georgetown University Law Center. “They worked the refs after Citizens United, which helped set things up for the Affordable Care Act challenge. If it seems to work, why not continue? It’s unfortunate, I think, that they’ve been encouraged in this behavior by its apparent success.”

And it’s not just a public disinformation campaign:

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Senate Rules Committee Chairman Charles Schumer (D-N.Y.) plan to hold hearings on the court’s ruling in McCutcheon v. Federal Election Commission striking down aggregate limits on campaign donations. …

Senate Majority Harry Reid (D-Nev.) panned it for granting greater influence to wealthy donors, such as Charles and David Koch, the wealthy conservative donors, whom he again slammed on the Senate floor Monday.

Of course Reid would find a way to turn a complaint about the court into another tool in his quest to turn libertarian activists into former people. In one sense, this is irrational, because it has no intellectual merit and should be beneath the leaders of the world’s greatest deliberative body. But in another sense, it’s completely rational: people respond to incentives, and in his ObamaCare ruling Roberts incentivized demonizing–that’s the Hill’s word–the Supreme Court.

The story notes that chief among the left’s worries is the upcoming ruling on the ObamaCare contraception mandate. And on that note, the best line in the story has to be this: “Democrats say the present-day court lacks the experience to understand the corrupting influence of money in politics, because none of its members have held publicly elected office.” Democrats just don’t believe that law abiding, upstanding men and women who have never been offered a bribe could ever really understand ObamaCare. And you’ve got to admit, they have a point, don’t they?

We may or may not find out if the pressure campaign works. After all, a decision on the case may not be a result of the intimidation tactics, either as a concession to them or as an act of defiance against them. It may be just another ruling on the merits of the case. But that’s one of the consequences of the Democrats’ shenanigans: the idea that the court will rule on the merits of the case becomes only one of several possibilities. Roberts thought he was protecting the legitimacy of the court in his 2012 decision. It’s quite clear now that he has done precisely the opposite.


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