There may have been a Supreme Court leak long before Alito's draft
There's been quite the kerfuffle about the horrendous leak at the U.S. Supreme Court (SCOTUS) on an upcoming ruling that may end Roe v. Wade. That caused me to recall another case, just a decade ago, in which such a leak may have occurred, only that one happened under the radar.
The Patient Protection and Affordable Care Act (AKA the ACA or Obamacare), which passed in March 2010, was a highly partisan piece of legislation. Conservatives saw it as the initial step toward a single-payer system and contested it fiercely.
The first serious challenge to ACA was National Federation of Independent Businesses (NFIB) vs. Sebelius, ("Sebelius"), which came before SCOTUS in 2012. Ballotpedia describes it as follows:
The case: A coalition of states, individuals, and the National Federation of Independent Business challenged the Affordable Care Act (ACA) on the grounds that the law's individual health insurance mandate exceeded Congress' authority to regulate interstate commerce under the Commerce Clause of Article I and did not fall within Congress' power to tax.
The issue: Whether Congress had the power to require individuals to purchase health insurance, whether the individual mandate could be severed from the rest of the law.
Pay close attention to the timelines: Sebelius was argued at the Supreme Court from March 26 to 28 in 2012. The justices then held a conference on Friday, March 30, and voted on the outcome. The vote then was 5 to 4 against upholding the individual mandate, with John Roberts siding in the majority with conservatives.
The very next Monday, April 2, 2012, President Obama made remarks about the case, although the actual vote would not be known for nearly three months. Among other things, he stated that he was "confident that the Supreme Court will uphold the law" because "it's constitutional." Because the Democrats are masters at legislating from the bench and have always hinted at the veiled threat to pack the court, Obama's comments sounded to me more like, "Nice Court you have there, John. Hope you can keep it."
In an article on June 11, 2015, Jonathan Adler of the Washington Post wrote:
In 2012, President Obama caused a stir with comments about the Supreme Court's pending decision in NFIB v. Sebelius. Many commentators, including some sympathetic to the president and his administration's legal arguments, thought that it was improper for the nation's chief law enforcement officer to make such comments. Harvard's Larry Tribe, for instance, told The Post that "Presidents should generally refrain from commenting on pending cases during the process of judicial deliberation.
What made me pause in 2012 was that Obama was always the cool guy. So why would he step out in advance of the ruling with statements, something that had an air of panic, unless he knew how the March 30 vote had gone? And if, a mere three days later, he knew the vote, how did he know?
Image: Barack Obama in 2012, accepting the Democrat party nomination. YouTube screen grab.
Well, let's see what others were saying. In 2012, Jan Crawford of CBS News wrote an article that's no longer available online but is referenced here:
In this closely-watched case, word of Roberts' unusual shift has spread widely within the Court, and is known among law clerks, chambers' aides and secretaries. It also has stirred the ire of the conservative justices, who believed Roberts was standing with them. After the historic oral arguments in March, the two knowledgeable sources said, Roberts and the four conservatives were poised to strike down at least the individual mandate.
Three months later, on June 27, 2012, the Court's ruling came down supporting the individual mandate. The vote was 5-4 for upholding. John Roberts had changed his vote and sided with the four left-leaning justices. And the logic of his majority decision was referred to as "pretzel-like" by some legal scholars.
To be clear, my comments here are my opinion and are based on my personal gut sense after hearing Obama's speech before the Court officially announced its ruling. It is not based on any direct proof (mainly because there never will be any direct proof). Still, given that the initial decision would have harmed the left's agenda (and Obama's upcoming re-election bid), it's possible that the initial vote was leaked to pressure someone on the Court to stop it — just as the recent leak of the draft majority opinion that ends Roe v. Wade functions as another act designed to protect leftist positions. Destroying SCOTUS's reputation is a small price to pay if leftists are to win. Right?
Lewis Dovland is the nom de guerre of a political observer on America's future direction. His focus is on the "Big Picture" end goals of the Progressive Marxist movement and how to prevail over them. Contact him to discuss further at Lewis.Dovland@gmail.com.