Liberals put the squeeze to Chief Justice Roberts

Concluding that Kennedy might be disposed to overturn the mandate, some Obamacare defenders decided that Roberts’s vote will be decisive. They hope to secure it by causing Roberts to worry about his reputation and that of his institution. …

Leahy unsubtly intimated that to avoid “another 5-4 decision” Roberts should emulate “the leadership that Chief Justice Warren provided in the unanimous decision in Brown v. Board of Education.” It is, however, passing strange to compare the Obamacare case with Brown, implying that a less-than-unanimous decision would be dangerous.

The school desegregation case overturned the social order of an entire region and accelerated the transformation of the nation’s cultural norms. Obamacare is just an unpopular law enacted by grotesque logrolling (securing three Democratic senators’ votes with the “Louisiana Purchase,” the “Gator-aid” and the “Cornhusker Kickback”). Furthermore, Obamacare passed because grossly corrupt conduct by Justice Department prosecutors in the trial of Republican Sen. Ted Stevens of Alaska had cost him reelection. …

Why, exactly, would it be less “divisive” for the court to uphold the broadly disliked Obamacare 5 to 4 than to overturn it 5 to 4? But whether Obamacare is liked or detested is entirely irrelevant. The public’s durable deference toward the Supreme Court derives from the public’s recognition that the court is deferential not to Congress but to the Constitution.