Olson Claims Roberts Switch Leaked Before Ruling

Olson Claims Roberts Switch Leaked Before Ruling July 16, 2012

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.

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