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Conservatives worry that John Roberts will 'go wobbly' on 'Obamacare'

May 23, 2012|By Michael McGough
  • Solicitor General Don Verrilli addresses the Supreme Court during healthcare argument.
Solicitor General Don Verrilli addresses the Supreme Court during healthcare… (Dana Verkouteren / Associated…)

Some conservatives are in a mild panic about the possibility that Chief Justice John G. Roberts Jr. will succumb to pressure from Democrats and the liberal media to uphold "Obamacare."

This from a Wall Street Journal editorial: "You can tell the Supreme Court is getting closer to its historic Obamacare ruling because the left is making one last attempt to intimidate the justices. The latest effort includes taunting Chief Justice John Roberts that if the court overturns any of the law, he'll forever be defined as a partisan 'activist.' "

Washington Post columnist Kathleen Parker makes the same point, adding a literary reference: "Novelist John Grisham could hardly spin a more provocative fiction: The president and his surrogates mount an aggressive campaign to intimidate [that word again!] the chief justice of the United States, implying ruin and ridicule should he fail to vote in a pivotal case according to the ruling political party's wishes. If only it were fiction!"

Poor Roberts, buffeted by the winds of lefty public opinion. Maybe we can steel his spine by shaming Sen. Pat Leahy, Jeff Rosen of the New Republic and, of course, Barack Obama for tempting him to throw a case. (Not that we would tell Roberts himself how to do his job.)

Really, this is silly. First, Roberts is a life-tenured judge whose time on the court is likely to stretch far into the future. Second, give him some credit for knowing his own mind. Perhaps that mind will lead him to seek a bipartisan consensus in the healthcare case; such "political" jurisprudence is not unprecedented. But the idea that he can be intimidated is bonkers. So is the notion that commentators can't advise him on how to vote.

In 1941, the Supreme Court famously voided a contempt-of-court citation against the Los Angeles Times based on its editorial comments about union violence. In an editorial titled "Probation for Gorillas?" (they sure could write headlines in those days), the paper offered some advice to the judge who would be sentencing two members of a labor leader's "goon squad" who had been convicted of assaulting nonunion truck drivers.

Thundered the editorialist: "Judge A. A. Scott will make a serious mistake if he grants probation to Matthew Shannon and Kennan Holmes. This community needs the example of their assignment to the jute mill." The judge was not amused and held the paper in contempt for publishing an article with an "inherent tendency" to interfere with the orderly administration of justice.

Writing for the Supreme Court, Justice Hugo Black essentially told judges to man up. He wrote that "thisĀ  editorial, given the most intimidating construction it will bear, did no more than threaten future adverse criticism which was reasonably to be expected anyway in the event of a lenient disposition of the pending case. 18 To regard it, therefore, as in itself of substantial influence upon the course of justice would be to impute to judges a lack of firmness, wisdom, or honor, which we cannot accept as a major premise."

Let's give John Roberts the same credit.

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