Wednesday, May 23, 2012

Lobbying the Supreme Court update

Mark Tushnet

So, here's the conservative press release if the Court upholds the Affordable Care Act: "John Roberts [or, presumably, at least one conservative] was intimidated by the left into abandoning his sincerely held convictions about the Constitution's meaning. The Court's decision was 'tainted' by politics." Again, I think it would help were proponents of the underlying theme to spell out exactly what they mean by "intimidation" (which is Parker's word). Do they think that John Roberts is going to worry that he won't be invited to some nice dinner parties, or won't get invited to speak at law schools? And, why exactly shouldn't he worry if he believes that a Court decision -- any one, really -- will impair the Court's legitimacy, in the sense that it would make it more difficult for the Court to hold public support for its (other) decisions? Or, believes that a decision will not be seen in retrospect as a wise one (the "verdict of history" point)? I'm not here endorsing the view that a decision striking down the Affordable Care Act would impair the Court's legitimacy or be seen in retrospect as unwise, just wondering what's wrong with taking those things into account when a justice is thinking about how best to interpret the Constitution. (Would Justice Henry Billings Brown have been wrong to think about them when trying to decide whether to pull his draft opinion in Plessy v. Ferguson in favor of Justice Harlan's dissent? Was Justice Breyer being obnoxious or guilty of attempting to intimidate his colleagues when he concluded his dissent in PICS with the words, "This is a decision that the Court and the Nation will come to regret [emphasis added]?)

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