March 26, 2014

WELL, THE BULLYING WORKED LAST TIME: May We Have Another, Please? The left lobbies the chief justice–again.

Even if Roberts is inclined to “adopt a new, more stringent test”–and we know of no reason to think he is, much less that four of his colleagues are–these cases afford him no opportunity to do so. The standard set forth in RFRA (which, to be technical, did not “overturn” Smith but enacted into statute protection for individual rights beyond those the court had found in the Constitution) is sufficient to decide the cases.

Donnelly seems to be hoping to discourage the chief justice from ruling in the plaintiffs’ favor at all, not just to refrain from approaching the case in a fantastically overbroad way. Two years ago, of course, Roberts at least created the appearance that he is responsive to that sort of political pressure. Thus we suppose we’d do the same thing if we were a left-wing legal commentator, on the theory that there’s nothing to lose by trying.

Then again, if Roberts does make decisions with an eye toward his own reputation and the court’s, he may also find it desirable not to appear so easily rolled.