The big shock in the Supreme Court’s Obamacare ruling was not that the law was upheld. Most people thought there was a substantial chance Justice Kennedy would side with the four liberal Justices.
But almost no one thought that it would be Chief Justice John Roberts who would be the swing vote, and that he would uphold the law not based on the Commerce Clause, but upon Congress’ taxing power.
The leaks from the Supreme Court were that Roberts was bullied into changing his mind by the open and boisterous taunts by the Obama administration, Democrats and the media that the credibility of the Supreme Court would be irreparably damaged, and with it Robert’s legacy as Chief Justice, if the Court intervened in the political dispute over Obamacare.
Regardless of whether Roberts flipped or the reason, the one thing that was not in doubt was that Democrats deliberately tried to influence the Court through a publicity campaign centered on the supposed damage to the Court as an institution should it strike down Obamacare:
Even liberal WaPo columnist Ruth Marcus was shocked by Obama’s transparent ref gaming:
There was something rather unsettling in President Obama’s preemptive strike on the Supreme Court at Monday’s news conference …
Exactly the same attempt to exert political pressure on the Court has started from the second the Court announced on Friday that it would hear the DOMA and California gay marriage cases.
Greg Sargent, who once accused me of “transparent ref gaming” for criticizing Chuck Todd (!) and David Gregory (!), is quite open about the strategy he is advocating and also is hearing from the pro-gay marriage legal team that Obama should issue a legal opinion supporting gay marriage (emphasis mine):
The Supreme Court’s decision to weigh in on two gay marriage cases has raised an important question: Will the Obama administration offer clarity on whether he thinks gay and lesbian Americans have a constitutional, as opposed to a moral, right to marry?
The Obama Justice Department is not saying whether it will address this question. But sources tell me the legal team representing the plaintiffs in the Proposition 8 case — Ted Olson, David Boise, and Ted Boutrous — plan to lobby the administration to publicly declare that the right to gay marriage is protected by the constitution, and to file a legal brief supporting their argument to that effect.
This would be a big, big move on the administration’s part. And Obama must do it, for two reasons. First, because it could help influence the Supreme Court to reach a broad conclusion on the constitutionality of gay marriage. Second, weighing in could help prepare public opinion to accept this right, too.
The argument is that the Supreme Court should raise its collective finger in the air, test the political and societal winds, and not end up on the “wrong side of history.” That phrase is now embedded in almost every mainstream media news report on the topic of the Supreme Court and gay marriage.
Here’s an example from ABC News (emphasis mine):
Will this newfound public opinion, largely driven by young people, women and Democrats, have an effect on the Supreme Court’s ultimate decision on the matter?
“I think (gay marriage is) just not a big deal for a lot of young people,” Elizabeth Wydra of the Constitutional Accountability Center says. “The justices are human beings so they’re not completely immune to public opinion. … I think the real question for them is going to be do they want to be on the wrong side of history?”
It’s one thing to argue that “history” (actually, politics) is moving in a particular direction, which in the case of gay marriage is debatable considering that 31 states are against and only 9 in favor. I think it is fair to say that the country is splitting along red and blue lines on the issue, and that split (as with many other issues) is the current sweep of history.
It’s quite another thing to try to game the Justices by asking them to decide the issue not based on their interpretation of the Constitution, but on the political implications for the Court of ruling one way or another.
That proponents of gay marriage feel the need to make the political and historical arguments as a means of influencing the Justices bespeaks a lack of confidence in their constitutional arguments.
Long ago and far away I predicted that Ted Olson and David Boies were too smart by half in their legal strategy, risking a Supreme Court ruling which would damage their political goal at a time when politics in many major states did seem to be moving their way. Just imagine if a repeal of Prop. 8 were on the ballot in California in 2012, rather than in the Courts.
We’ll see at the end of June if I was right.
In the meantime, expect the ref gaming to reach a fevered pitch right around the time of oral arguments and in the weeks to follow. But don’t expect any of the liberal Justices to be the target, everyone knows they are beyond influence.