Whatever one may think about the Constitutionality of the individual mandate provision of the Affordable Care Act, also known as “Obamacare,” it is a difficult and complex question. Anyone who argues otherwise 1) doesn’t know what they are talking about, 2) is lying, or 3) is basing their opinion on ideological considerations rather than legal ones. The members of the Supreme Court, which must decide the question (and in fact have almost certainly decided it) do know what they are  talking about, and while they all have ideological tilts in the sense that each gravitates to a particular Constitutional philosophy, political considerations, ideas pushed by the media and the popularity of particular legislation are supposed to play no part whatsoever in their deliberations.

The degree to which the Democrats, led by President Obama, have attempted to intimidate, hector and insult the Court into deciding the case in favor of the mandate is unprecedented in my lifetime, and I think it is unprecedented period. The advocates for the law had its legal representative make their case before the Court, and by all accounts he either botched it, or didn’t have points strong enough to withstand the challenges posed by the Justices in oral argument. Fearing that their landmark legislation that was passed by a whisker will topple because of the flawed cornerstone that its architects foolishly, arrogantly and unnecessarily placed at its foundation, Democrats have been pre-emptively impugning the honesty of the Court, essentially arguing that if the law is overturned, it will only be because of political favoritism and bias. It has been a disgraceful display, and is a despicable tactic.

Having already been submitted to bullying by the President, the Court is now seeing the Senate join in the assault, with Senator Patrick Leahy from Vermont making a blatant plea for Chief Justice John Roberts to change his vote, if necessary, because for the Court to overturn the ACA would undermine the legitimacy of the Supreme Court and scar democracy. You can read his attack here.

His statement, in fact, is an assault on our system of government and the separation of powers. It is a nakedly partisan statement that dishonestly asserts that a measure that is in fact unprecedented is in arguably consistent with precedent, and hypocritically claims that “outlandish” slippery slope arguments are illegitimate, when the mandate itself is a prime example of the slippery slope at work. Worst of all, however, the attack is unethical , because Leahy calls upon a body sworn to act according to legal analysis and Constitutional  principles only to instead rule in response to threats and dire predictions of political, popular and practical consequences. Leahy is explicitly attacking the integrity of the Supreme Court by making the circular argument that only by violating its integrity can the Supreme Court maintain the appearance of it. This is an example of the gutter ethics of Congress attempting to infect the Supreme Court.

In her recent column, Washington Post columnist Jennifer Rubin explained what was wrong with Leahy’s screed as well as similar attacks on the Court coming from the Left, and did so in ethical terms, for indeed the strategy is to induce a judge into violating his ethical duties. She knocked it out of the park, in my view, writing,

“Let’s see what the left is asking Roberts to do. It’s quite a Faustian bargain it proposes. The liberal advocates ask Roberts to knuckle under to the president’s public intimidation of the Supreme Court, begun when he attempted to humiliate publicly the justices on Citizens United and continuing up to his public scolding. They ask he accept the Supreme Court as an agent of the executive branch, ready to do its bidding. They ask Roberts to embarrass himself before fellow justices, who already know Roberts’s views of the case. They’ll certainly see if Roberts took a fall. Rosen et. al would have the chief justice sacrifice, perhaps permanently, the respect of his colleagues who know all too well the intimidation game afoot. The left would need Roberts to drag a fellow colleague, Justice Anthony Kennedy, along for cover — for it would be untenable for the chief justice to be lonely vote-changer. Kennedy’s robust and insightful questioning in oral arguments, in which he captured the essence of Obamacare (i.e. it would fundamentally alter the relationship between the individual and the federal government), would have to be swept aside. The Obama-Leahy-Rosen tag team would ask that Roberts subscribe to some alternate political reality in which Obamacare is very popular and the public would be shocked and rise up in anger that the Supreme Court would overturn the “popular will.” (They must assume Roberts isn’t aware more than 70 percent of the public think the law is unconstitutional.) The pleaders would ask Roberts to adopt the left’s contention that conservative justices who adhere to the meaning and text of the Constitution can’t all vote one way for fear it will “look bad,” but liberal justices are free to march uniformly as they see fit. In essence, the left asks Roberts, knowing he believes the law to be unconstitutional, to nevertheless switch sides and thereby violate his oath of office. That’s the one where he swore to “administer justice without respect to persons, and do equal right to the poor and to the rich.” And without regard to which side whines the loudest. I think the left asks waaay too much. The Chief Justice, I am certain, doesn’t want to go from umpire to the judicial equivalent of the 1919 Black Sox.”

Integrity. Honesty. Fairness. Respect. Responsibility. Process.  All of this and more Leahy wants Chief Justice Roberts to sacrifice in order to preserve a law that may be unconstitutional, and that the Senator is personally too conflicted to be able to say whether it is or is not. Rubin is correct. It is waaay too much.

Do read her whole piece.

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Pointer: Volokh

Sources:

• Sen. Leahy
• Washington Post

Graphic: IMOA

Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work was used in any way without proper attribution, please contact me, Jack Marshall, at  jamproethics@verizon.net.