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Olson Claims Roberts Switch Leaked Before Ruling

Walter Olson of the Cato Institute is a legal scholar I have long respected a lot and often cited. He’s an advocate of marriage equality and generally a very reasonable guy. But I think this op-ed piece about the Supreme Court’s healthcare ruling is rather irresponsible in its speculation that Roberts’ change of position had leaked to Washington insiders. The evidence he gives for that claim is pretty thin, to say the least:

Worst of all, it’s now clear that deliberations at the court leaked before all the justices had made up their minds — which, in a disastrous portent for the court’s political independence, led to outside campaigns aimed at the wavering Roberts. In a May 14 speech, to quote one report at the time, Sen. Patrick Leahy, D-Vt., “directly addressed Chief Justice John Roberts, urging him in a sharply partisan tone” not to overturn the law.

Washington lawyer Stewart Baker has pointed out how strange that timing was: Since conference had been held six weeks earlier, anyone not in possession of confidential information would have assumed it far too late to persuade Roberts of anything. What did Leahy — and other Washington actors who jumped into the same debate in May — know, and when did they know it?

Not long ago, almost everyone would have deemed it flagrantly improper for outsiders to pressure individual Supreme Court justices to vote one way or another in pending cases. If deliberations are now to be laid open to public scrutiny through leaks — so that we learn who’s still uncommitted and might be reachable on which issues — we can expect such pressure to become routine. And the independence from political interference that the Framers planned — and on which the court’s authority rests — will have become a thing of the past.

There are a couple of problems here. The first is the lack of evidence for the notion that Leahy must have known that Roberts was wavering in order to say publicly that he should vote to uphold the mandate. That’s a serious non-sequitur. Lots and lots of court observers, including me, identified Roberts as a potential swing vote on this case from the start. The mere fact that he publicly urged Roberts to vote the way he thinks he should vote is simply not compelling evidence that Leahy had any information the rest of us didn’t have.

The second problem is the idea that elected officials making public statements about how they think the Supreme Court should vote on an issue amounts to “interference” that threatens judicial independence. There isn’t a single major case the court has considered in my lifetime that did not draw the interest of elected officials, who state publicly how they think the court should vote on the case. Republicans have made criticism of the “out of control” court full of “unelected judges” a staple part of their rhetoric for decades. Indeed, they’ve even submitted legislation to limit the court’s jurisdiction many times, always in response to the court handing down a ruling they disagree with.

The keys to the judicial independence sought by the founders were A) the process of appointing them rather than having judges be elected; and B) the lifetime appointment for judges. Those things insulate them from the need to please elected politicians and the voting public. Those things are not violated by politicians stating their opinion on how the court ought to rule.

Comments

  1. Ben P says

    Of course Olsen isn’t one, but I find it enormously amusing that Conservatives who have made careers out of applying public pressure to the courts on the pro-life front now turn around and attack liberals for attempting to influence the court’s rulings.

    However, Olsen is also in an interesting place here, many conservatives have shied away from the leak story because it is quite obvious from the context of several of the articles, the people who did talk to reporters before the decision was issued were in the conservative camp.

  2. F says

    The second problem is the idea that elected officials making public statements about how they think the Supreme Court should vote on an issue amounts to “interference” that threatens judicial independence.

    Well, duh. It’s the druggings and the holding of weapons to the heads of members of a justices family that does it. Haven’t you been paying attention?

  3. williamsnedden says

    Not to mention that it’s at least equally likely that an appeal directed to the CJ could certainly be taken as a more or less “generic” appeal to the court itself.

  4. baal says

    Here here!

    A) the process of appointing them rather than having judges be elected;

    I’m in total agreement. When a judge declares a bias ahead of a court case, the litigants and 3rd parties (everyone else) can fairly wonder if the win or loss was due to the judges firmly held beliefs or the facts and law of the case. Worse, a judge may feel that a case should go one way but that they’d be at risk of a hypocrisy charge for that ruling and instead rule for consistency. Even more worse (worser!), political parties like ideological purity and work towards supporting the judge that takes the purest positions prior to election. And worse than that, (ok I give up on the comparative (never give up, worsest!)) say a (D) judge rules for a (D) in an case where that (D) is a local celeb. The public’s confidence that the judge is ruling fairly takes a hit.

    It’s pretty easy to see the potential harms. They have been playing out in reality, however, since the Republican Party of Minnesota v. White case and largely the (R) pushing to switch from appointed judges to elected ones (contrary to founder intent as Ed notes).

  5. Nemo says

    Indeed, they’ve even submitted legislation to limit the court’s jurisdiction many times

    How ridiculous is that, BTW? I mean, considering that any challenge to it would be heard by… the Supreme Court.

  6. Ben P says

    How ridiculous is that, BTW? I mean, considering that any challenge to it would be heard by… the Supreme Court.

    Actually the legislation itself is fairly ordinary.

    All the constitution says about the Supreme Court specifically is this.

    The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.
    [snip]
    In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

    The current judicial system was largely set up by statute, and is pretty heavily governed by statute. If congress decides to limit the supreme court’s jurisdiction in some matters, they probably have the right to do so.

    However, obviously they can’t go too far, because the court is the one that hears the challenges, but then you’ve got a separation of powers fight.

  7. says

    Ben P “However, obviously they can’t go too far, because the court is the one that hears the challenges, but then you’ve got a separation of powers fight.”
    That’s the worst kind of fight. They get bound to each other at the wrist, and in their free hand bear a rolled up copy of the Constitution, with which they each attempt to beat the other to death.
    It takes forever.

  8. d cwilson says

    Not long ago, almost everyone would have deemed it flagrantly improper for outsiders to pressure individual Supreme Court justices to vote one way or another in pending cases.

    Aside from the fact that the anti-choice camp has been trying to influence the Supreme Court for decades now, how exactly would one pressure a justice who is appointed for life?

    This is why wingnuts have resorted to wackaloon theories about druggings or threatening Robert’s family. Even they know the idea that politicians can influence the justices just by saying how they’d wish the court would vote is ridiculous.

  9. says

    Indeed, as Ben P. says, the public battle for Roberts’ vote that took place in May involved both conservatives and liberals, and nothing I wrote was meant to suggest that the leaks came from the liberal Justices’ chambers. I singled out Sen. Leahy because 1) he was the most highly placed officeholder to take part in the battle and 2) CNN’s coverage of his speech may have been the most visible surfacing in the national media of the fact, well known to many Court-watchers, that such a public battle was in progress. Is Ed contending that: 1) no, Roberts’ switch never leaked, even though DC law mavens gabbled about it contemporaneously for weeks; or 2) yes, it leaked, but somehow the resulting gabble on both sides of the aisle never reached Leahy, who chairs the Senate Judiciary Committee; or 3) yes, it did reach Leahy, but he was perfectly within his rights to take part in the battle for Roberts’ vote?

    Now, if the answer is 3), Ed is within his rights to take a different position from mine on the proper role of political pressure on the high court (which does not make either of us “irresponsible.”) Maybe it’s okay for the head of Senate Judiciary, before whom future nominees must come for their confirmation hearings and to whom the Court itself occasionally must appeal when legislation affects its institutional interests, to indicate in strong terms how he wants a given vote to come out. I ask only that, as is good practice in any such situation, we imagine the sides reversed: say a church-state separation issue, or the federal definition of marriage under DOMA, comes up for review next year and a newly installed Republican Judiciary chair decides to browbeat whichever Justice is known to be wavering. Fair game? Not to me.

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