October 15, 2016

TO BE HONEST, IT WAS QUITE OBVIOUS WHAT THEY WERE DOING AT THE TIME, AND TO MY SURPRISE ROBERTS FELL FOR IT: Rolling Justice Roberts: A Clinton ally reveals how the left played the Chief on ObamaCare.

The WikiLeaks email disclosures make fascinating reading about the political calculations of leading progressives, and Chief Justice John Roberts may want to pay particular attention. This week’s leaks show Hillary Clinton ally Neera Tanden laying out a strategy to intimidate the Supreme Court to uphold ObamaCare.

Ms. Tanden runs the Center for American Progress, the think tank that is essentially an arm of the Clinton campaign. CAP’s former chief, John Podesta, is now the Clinton campaign chairman, and on June 2, 2015 Ms. Tanden sent an email to Jake Sullivan, a key Clinton aide, copying Mr. Podesta and Jennifer Palmieri, another campaign operative.

The subject line was “King v. Burwell,” the second big legal case contesting the constitutionality of the Affordable Care Act, three years after the first case in which the Chief sided with the four liberals to uphold the law.

Ms. Tanden wrote that, “As Jennifer will remember, it was pretty critical that the President threw the gauntlet down last time on the Court, warning them in the first case that it would politicize the role of the Court for them to rule against the ACA. As a close reader of the case, I honestly believe that was vital to scaring Roberts off.”

We wrote at the time about the campaign to mau-mau the Chief, and now we know it was orchestrated. The campaign included a Senate speech by Vermont’s Pat Leahy, a broadside from President Obama about “an unelected group of people” overturning “a duly constituted and passed law,” and articles by such media progressives as Jeffrey Rosen of the New Republic and Jeffrey Toobin of the New Yorker. Mr. Rosen hit the talking points out of the park when he wrote that, “If the Roberts court strikes down health care reform by a 5-4 vote, then the chief justice’s stated goal of presiding over a less divisive court will be viewed as an irredeemable failure.”

What’s funny is that the Court’s prestige has fallen dramatically since then, largely in consequence. It may be that the best way to promote the Court’s prestige is to not pay too much attention to what people are saying about it. Sad as it is to conclude this, it may be that Harriet Miers would have done a better job.

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