May 23, 2012

"No, the Supreme Court is Not Poised to Adopt a Radical Libertarian Agenda..."

"... and Certain Commentators Should be Embarrassed for Suggesting Otherwise."

And from Randy Barnett:
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... 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 Senataor Leahy and Jeff Rosen is implicitly urging him to change his vote from that which he cast in the conference.
I think Randy is implying that the news of the vote leaked from the conference.

52 comments:

ricpic said...

Bullying in defense of statism is no vice!

Scott M said...

Why the pressure on Roberts? Does that imply that Kennedy voted unfavorably in Leahy and Rosen's opinion?

Matthew Sablan said...

I think the pressure is on Roberts because they tried pressuring Kennedy before the oral arguments. So, if he did already vote against their interests, might as well take a swing at someone else.

Pettifogger said...

I agree with those who say that this pressure makes it harder for Roberts to vote with the Liberals were he so inclined. The vote would inevitably be seen as a capitulation to political pressure and would damage him and the court

Michael said...

I always love the phrase "radical libertarian." Because as we all know, intrusion into every aspect of life is the norm; for government to hold back in any area is a radical break with tradition with potentially dangerous consequences. Stop them from not doing everything they want to now! End this reign of terror of less than total dominion over you!

SteveR said...

Leaked? Who could that be? Not a hard call that one.

Saint Croix said...

There would be no pressure if the vote was 6-3 or 7-2. So we can surmise that the vote is 5-4, and not just 5-4 but partisan lines 5-4. Hence the pressure on Roberts, that it looks bad for the Court to vote 5-4, with the Republicans on one side and the liberals on the other.

And it does look bad. On the other hand, it also looks bad that the pressure is coming from liberals and aimed at conservatives.

What about the liberal four? Maybe they should open their minds a bit and give up their political agenda.

I would be way more impressed if a liberal commentator was attacking the liberals on the Court.

Robert said...

Bet it was the Wise Leaktina.

BarrySanders20 said...

How sad it will be for the elite Con Law professors to have to acknowledge that their divining rods might be wrong this time and there are limits on what Congress can do under the commerce power.

Is there some kind of law professor ritual that these types will have to do (prostrate themselves or provide burnt offerings) for Randy Barnett if this law is overturned? They were so dismissive of him because it was utterly INCONCEIVABLE that Obamacare could be struck down. After all, nobody in their faculty lounge believed it possible, therefore, is was impossible.

Scott said...

There is another possibility. Perhaps Leahy and Rosen know that they have lost (likely that slimy apparatchik Kagan leaked the vote results...) and are now pressuring Roberts not to change his vote (very unlikely) but to assign a 'friendlier' justice to write the majority decision. After all, that decision is what is going to be used to implement the ruling(s)...

TMink said...

Yeah, it smells like lies.

Trey

SteveR said...

Given how the law was passed, how can anyone have a problem with a 5-4 vote?

Saint Croix said...
This comment has been removed by the author.
Saint Croix said...

I haven't been able to find whatever Jeffrey Rosen wrote that everybody's bitching about.

Rosen's an excellent law professor, in my opinion. He's in the mold of a Felix Frankfurter, so I'm never going to agree with the guy. But I respect his stuff and I like to read it.

Anybody have a link?

F said...

Another possibility (in addition to the idea that the left is trying to pressure Roberts to change his vote) is that they are merely clearing the battlespace for going after the conservative members of the Court when Obamacare is declared unconstitutional. Now they can say "we warned you not to have a party-line vote!" Do they ever think about saying that to the 4 liberal justices?

Saint Croix said...

Also, writings from law professors does not actually qualify as "pressure" in my opinion.

Unless you're actually in a class, under them, and they're grading your work. That would be pressure.

Opinions piece in the New Republic = light summer breeze.

BarrySanders20 said...

Saint,

I think they know they cannot apply direct pressure. It's the indirect social pressure -- you'll never be invited back into polite (elite) legal company if you strike down the law, and since we decide what your legacy will be, you best be cautious.

You got a potential for a nice legacy there. Be a shame if something happened to it.

Saint Croix said...

The Supreme Court is impervious to so-called "pressure" from private citizens.

Call them baby-killers. What do they care? Not a whit.

Eventually, of course, enough people get upset and those people vote and the representative branches of the government start to apply real pressure.

This is why Casey is such an utter failure under its own terms. That opinion was written to make the conflict go away. It failed, utterly, to make the conflict go away.

Which means the attacks and the pressure will continue until Roe v. Wade is overruled.

It might be unseemly but we don't actually have an oligarchy where unelected people lead us. So if they fuck up they're going to hear about it. As they should.

Saint Croix said...

I think they know they cannot apply direct pressure. It's the indirect social pressure -- you'll never be invited back into polite (elite) legal company if you strike down the law, and since we decide what your legacy will be, you best be cautious.

FDR applied direct pressure. He tried to add more Justices to the Supreme Court. He was actually right on the law (the Constitution does not lock the number at 9), but his motivations were transparent, and people did not like it.

That pressure worked, by the way.

Richard Dolan said...

"I think Randy is implying that the news of the vote leaked from the conference."

If it happened, it wouldn't be unprecedented. One of the most famous (infamous?) instances of a leaked vote occurred in the final round of the Korematsu/Hirabayshi cases. When those cases were argued in 1944, Justice Frankfurter was a frequent go-between from the Court to the White House, and was a confidant of FDR. After the Court decided those cases (in a way that some thought was embarrassing to FDR), the Chief Justice refused to release the opinions without any apparent reason. Justice Douglas (among others) was pushing the CJ to do release them because the import of the rulings would have benefitted some of the appellants (and released one from custody).

While that internal struggle was going on at the court, FDR's administration announced that it was voluntarily taking action that the Japanese-American internees had been demanding. That announcement came on a Sunday in early December. The next day (Monday) the Court released its decisions, finding (in part) that some of the internees' rights had been violated. But the impact was overshadowed by FDR's announcement the day before.

Many have noted that the entire dance only makes sense if Frankfurter (or another justice) had leaked the court's decision to FDR. The entire, very sad story is told in Peter Irons, Justice At War: The Story of the Japanese American Internment Cases (Oxford 1983).

It bears noting that the Korematsu/Hirabayashi cases came up during the 1944 presidential election, just as the ObamaCare litigation is happening in this year's election. Needless to say, justices are appointed for political reasons; none of them is unaware of the ramifications for thier 'home team' of what they do.

traditionalguy said...

Radical is code word for Republican values.

The Dem world is upside down. To them backwards means forward, up means down, jobs mean government make work, and protecting basic free people's rights means a radical counter-revolution.

Quayle said...

This is what happens when your cause is all that matters, let the pillars of society fall where they may.

Quayle said...

We used to tenaciously cling to our system of government - the rule of law not the rule of men.

I"m convinced that our system can withstand any assault by radicals, but will never withstand apathy of the common man.

(Hey, isn't that an Aaron Copeland piece? "Apathy for the Common Man")

Carol said...

"That pressure worked, by the way."

So are we looking at Robert's Switch II?

Saint Croix said...

Liberals have been trying to pressure Justice Ginsburg into retiring. So that's an example of liberals pressuring their own.

Why are they pressuring her? She's 79. If Romney has two terms, she will retire or die and Roe v. Wade will be lost.

She's immmune to the pressure. Either she doesn't think she's old ("I feel good!") or she thinks Obama will be reelected. Or she thinks she can hang on through 4 years of Romney.

Or perhaps she thinks that having power and keeping it is more important than her legacy.

Maybe she doesn't want to be reduced to "you're the damn 5th vote for choice and we got to keep it!"

All this vote-counting is very unseemly, of course. But it will continue to happen, on both sides. And eventually, of course, the Republicans get 5 and Roe v. Wade is gone.

Anthony Kennedy got a lot of nice press from liberals in 1992. But now they think he sucks. Ask them, they'll tell you. Everybody hates Anthony Kennedy. He's the suck weasel.

The Anthony Kennedy Lesson is that you don't abandon what you think is right to try to get good press.

30yearProf said...

Liberals only follow the rules when they lead to the "politically correct" result (or, in Chicago, to the payoff).

Crunchy Frog said...

You got a potential for a nice legacy there. Be a shame if something happened to it.

You want to be on the right side of history, don't you?

Calypso Facto said...

"What makes all this relevant to the bothersome application of 'political pressure' against the Court are the twin facts that the American people love democracy and the American people are not fools."
Justice Antonin Scalia 1992

Perhaps overstating the virtue of the American people, but still...

Original Mike said...

"No, the Supreme Court is Not Poised to Adopt a Radical Libertarian Agenda..."

Bummer.

Original Mike said...
This comment has been removed by the author.
Seven Machos said...

Obviously, if there was a leak, it was the clerks who did the leaking, not the judges. I have often wondered why we don't see more leaks from clerks...

Palladian said...

I really like the idea of radical libertarianism. "These dangerous people want you to be TOTALLY FREE!"

It's sort of like saying "that person wants to give you a radical blowjob!"

Oooh, I'm scared!

Saint Croix said...

I have often wondered why we don't see more leaks from clerks...

The Brethren was all leaks from clerks. (Although in that case it was former clerks).

Probably there is some internal rule that if you leak you can be fired.

Obviously the clerks have to be told how the conference voted, since the clerks will have to write the opinion.

Justin said...

And eventually, of course, the Republicans get 5 and Roe v. Wade is gone.

I wouldn't be so sure about that if Obama gets reelected. Number one, Ginsburg and maybe even Breyer will likely retire if that happens, and will be replaced by two young, healthy liberals. Number two, Scalia is a fat, 76-year-old smoker, so I wouldn't place bets one way or the other on him making it another four years. Number three, Kennedy, who is almost 76, doesn't strike me as the type of person who will care what party is in power when he retires.

Rabel said...

Here's the Rosen article:

Moment of Truth

Maybe the Roberts "pressure" isn't meant for Roberts, but for another justice or two.

Not to win, but to keep the vote at 5-4. Wouldn't be cool to call out Kennedy of Sotomayor or Breyer by name.

damikesc said...

What would a "radical libertarian" agenda look like?

REALLY leaving you the hell alone?

It's sort of like saying "that person wants to give you a radical blowjob!"

Oooh, I'm scared!


Dunno. That could mean they'd use teeth to an extreme --- and that ain't good for anybody...know what I'm sayin'?

mrs whatsit said...

Seven Machos, I'm a judicial law clerk -- though not at a level anywhere near so lofty as the Supreme Court -- and it's not obvious to me at all that if there was a leak, it must have come from a clerk rather than a judge. t's judges, not clerks, who might be motivated to leak as a favor to the elected officials who appointed them. Clerks generally get hired by the judges they work for and don't owe outside loyalty debts to anybody else. Short of a bribe, where's the motivation?

Besides, a judge could leak with relative impunity, while the risks to a clerk would be far greater. It's not just a question of getting fired -- though a clerk caught leaking certainly would be fired. Breaking the confidentiality of chambers is such a grave ethical violation that it might lead to professional discipline and would likely affect that clerk's legal employability ever after. Besides, there are excellent reasons for preserving the confidentiality of chambers that go far beyond the individual consequences to any one law clerk. Believe it or not, most people who work for the courts understand those reasons and treat their related ethical obligations accordingly. (In my state, anyway. I don't speak for places like Wisconsin, where the courts seem to follow ethical rules all their own -- or no rules at all.) Most clerks wouldn't put all that at risk in exchange for the third-grade thrill of being the one who gets to tell the big secret first. The surprise isn't that clerks don't leak more often; the surprise is that they ever do, and I'm guessing that if anybody did leak here, it wasn't a clerk.

george said...

If the vote didn't leak then Kagan was appointed for nothing. That was the sole purpose for putting her on the court. She was supposed to see this thing over the goal line.

If she had any scruples about such things she would have recused herself entirely.

Seven Machos said...

Whatsit -- I know all about legal ethics, as I have a law degree just like you. Having worked for the State Department, I also know all about leaks.

I am very confident that it was a clerk if there was a leak. As Croix points out above, leaking clerks are a known phenomenon. For you to suggest that clerks don't leak out of some ethical duty is just hopelessly naive.

This case is not a garden-variety case. There is plenty of motivation to leak. Moreover, it is underlings who typically leak things in the first place.

harrogate said...

"End this reign of terror of less than total dominion over you!"


Yeah, I know lots of people who look at the world that way.

Saint Croix said...

Short of a bribe, where's the motivation?

What, are you kidding? You know something other people don't know! And they want to know so bad.

It's not frickin' All The President's Men, with Deep Throat in the underground garage, and you put out a plant if it's okay to talk.

It's three martinis and you tell your pal from law school. And they tell two or three people, and they tell six people, and they tell 24 people, and the Washington Post tries to confirm it, and nobody is talking.

The original clerk is probably going "oh shit" right about now.

Seven Machos said...

Croix -- Agreed. Here we have the most anticipated Supreme Court case since 2000, and everybody wants to know the outcome. But no, no motivation for anyone with knowledge of the outcome to tell anyone else. No way. Because, you know, ethics. Lawyers and their ethics...

Steve Koch said...

My guess is that Kagan is the leaker. She was part of the Obama administration and is an artisan at partisan.

The big picture is that if the supreme court really did vote to overturn ObamaCare (and sticks with that vote), the dems completely wasted their two years of total control. Awesome!

What is funny is that now Obama is on his knees begging the supreme court to change their mind. Not too long ago he was blasting the supreme court in his state of the union speech. The supreme court justices were in attendance with no chance to respond. Not the best way to win friends.

Scott M said...

The big picture is that if the supreme court really did vote to overturn ObamaCare (and sticks with that vote), the dems completely wasted their two years of total control. Awesome!

...with the punch line being they managed to keep the Bush tax cuts in place.

If SCOTUS overturns ACA completely, meaning they void the whole thingamabob, should the Romney camp add a "look at all the wasted time" arrow to their quiver? I mean, as long as they don't shoot it randomly in the vicinity of young girls?

Saint Croix said...

Rabel, thanks for that link. Here's another Rosen article that's quite good. It doesn't convince me but I think it's a strong legal argument.

While I think Lochner should stay dead and buried, I think the Supreme Court could and should use the non-delegation doctrine to strike down laws. What's radical about the idea that Congress has rule-making authority (not administrative agencies) and federal rules have to be written by elected representatives (not anonymous bureaucrats)?

Liberals might enjoy the administrative state but there's no hint of that form of government in our Constitution.

mrs whatsit said...

Welp, I could be naive, but I'm just speaking from my own experience, where clerks reallly don't leak info about forthcoming decisions, ever, no matter what you may want to believe. Frankly, in my experience it's a whole lot more thrilling to know the secret that nobody else knows, and to keep it like that for a few short weeks, than to blab it out and put the rest of your professional life at risk. Leaks are business-as-usual at State, so your experience there doesn't shed much light. As for Croix's reference to FORMER clerks telling battle stories about long-ago events, of course they do. That's completely different from leaking a decision before it's handed down -- can you cite me a case where that's happened on the Supreme Court? I guess it must have happened sometime, but I haven't heard about it. And how was some lowly clerk going to get access to Obama to whisper the big news in his big ears, anyway? Wouldn't that be a whole lot easier for a judge?

If anybody's hopelessly naive, it's you for discounting the much more obvious likelihood that a judge would leak the news to Obama as a quid pro quo for appointment to a cushy prestigious job with lifetime tenure.

Seven Machos said...

clerks reallly don't leak info about forthcoming decisions, ever, no matter what you may want to believe

At the State Department, where you could be charged with federal crimes up to treason for leaking classified information, we had (and I'm sure there still is) a persistent problem with leaks. Note that treason is punishable by death.

I also find it interesting that you think that judges have a lower ethical standard than clerks. Judges make more money -- much more. Judges have much more on the line if they are caught leaking.

I'm sure you are great at law. But your knowledge of the human condition needs some work.

Seven Machos said...

P.S. -- Nobody is whispering to Obama. Clerks are whispering to Obama's similarly situated personnel and to journalists.

Chip Ahoy said...

The depth of your insight is astounding. The perspicacity, the pellucid cold crystal clarity, I'm astonished. I hear 'leaked' and think, 'eh,' and you hear 'leaked' and pretty nail the leaker. (!) *backs out of room*, *quietly shuts door*

Eric said...

Well, if Obama gets reelected, which is looking less likely these days, he can spend another SOTU address berating the Supreme Court for, you know, doing their job.

mrs whatsit said...

Well, at this point we're both wasting our breath -- but I do want to point out that while your worldly wisdom may be way ahead of mine, your reading comprehension needs work. I said nothing about the comparative ethics of judges and clerks. Anybody who leaks, judge or clerk, is obviously lacking in the ethics department, and I have no views as to who's more venal than whom (though it's true that I am underwhelmed by the ethics displayed so far by at least one of Obama's appointees.) What I wrote about was loyalty, motivation, opportunity and consequence -- all of which I still think, assuming an unethical person in the first place, point more toward a judge than a clerk.

As for money, yup, judges make a lot more, but that's hardly the end of the story. A Supreme Court clerk is in the first job after law school, a short-term hitch -- arguably the most prestigious job a baby lawyer can get -- that will make the rest of his or her professional career unless he or she screws up spectacularly. A Supreme Court judge, on the other hand, is in the last job of his or her life, to be lost only by death, resignation or impeachment. Would a judge caught leaking be impeached? Yeah, maybe, but not with anything like the same swift inevitability that a leaking clerk would be fired.

As for who's doing the whispering, I suppose a clerk might possibly take the risk of confiding in some friend who worked in the White House -- but if they're putting their professional lives on the line by whispering to JOURNALISTS, they're a whole lot dumber and lacking in worldly wisdom than you or I will ever be.

If there was a leak at all, I think it most likely went like this: after conference, some judge (gee I wonder which one) got the word to Obama. In reaction, he went off as if stung by a bee, ranting to the media about an "unelected group of people" who might somehow have the unmitigated gall to strike down his signature legislation -- so far off teleprompter that he had to spend the rest of the week walking it back. After that, any whisper campaign to journalists designed to intimidate Roberts into changing his vote came from Obama minions, and not from anybody at the Court.

That's what I think, anyway -- but whatever anybody thinks, it's highly unlikely that we'll ever know.

Mark said...

The best thing in the world for the Democrats (if not Obama) would be for the court to toss Obamacare. The Dems could rail against the partisan court for being partisan, and campaign on "fixing" Universal Health Care so that it passes Constitutional muster next time 'round.

They get a signature issue back without having to live with the realities of what they passed in the past.

Obama will be livid, but at this point I'd guess a lot of Democrats see that as a feature rather than a bug. "Oh, you won't campaign for me? Gosh, that hurts, that really hurts."