The ongoing release of hacked emails allegedly from the account of John Podesta, Hillary Clinton’s campaign chairman, has led to a number of high-profile stories about the former Secretary of State. These stories are incredibly important. However, a recently released email chain in which a Clinton ally voices her desire to intimidate SCOTUS Chief Justice John Roberts should set off alarm bells.
In June of 2015, Neera Tanden, president and CEO of the liberal Center for American Progress, sent an email to Clinton aide Jake Sullivan, Director of Communications Jennifer Palmieri, and John Podesta, about the possibility of pressuring Justice Roberts on the court’s second major Obamacare decision:
“It is most likely that this decision has already been made by the Court, but on the off chance that history is repeating itself, then it’s possible they are still deciding (last time, seems like Roberts went from striking the mandate to supporting it in the weeks before).
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.”
Screenshot via WikiLeaks
In 2012, Roberts allegedly changed his mind at the last minute regarding the Affordable Care Act mandate, leading to a 5-4 decision that allowed the federal government to “tax” those who refuse to purchase health insurance. It was a major blow to conservatives, many of whom believed Roberts would be the leader in striking down the unconstitutional measure.
Some suspected that Roberts had been intimidated by President Obama, and the press. Jan Crawford of CBS News wrote:
“…as Roberts began to craft the decision striking down the mandate, the external pressure began to grow. Roberts almost certainly was aware of it…As chief justice, he is keenly aware of his leadership role on the court, and he also is sensitive to how the court is perceived by the public…There were countless news articles in May warning of damage to the court–and to Roberts’ reputation–if the court were to strike down the mandate.”
In April of 2012, Obama issued a strong statement aimed directly at the conservative justices on the Supreme Court:
“For years, what we’ve heard is the biggest problem on the bench was judicial activism or the lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, there’s a good example, and I’m pretty confident that this court will recognize that, and not take that step.”
Roberts offered a glimpse into his line of thinking when in February of 2016, he said: “We don’t work as Democrats or Republicans, and I think it’s a very unfortunate impression the public might get from the confirmation process.”
Roberts may well have been moved to stand with the Obamacare mandate out of a desire to appear apolitical in the face of mounting pressure from Obama and the media. At least Neera Tanden seems to think so.
When King v. Burwell, the second major Obamacare case, came before the Supreme Court in 2015, Tanden allegedly wanted to apply similar pressure to Roberts:
“In this case, I’m not arguing that Hillary spend a lot of time attacking the Court. I do think it would be very helpful to all of our interest in a decision affirming the law, for Roberts and perhaps Kennedy to see negative political consequences to ruling against the government.
Therefore, I think it would be helpful to have a story of how progressives and Hillary would make the Supreme Court an election issue (which would be a ready argument for liberals) if the Court rules against the government. It’s not that you wish that happens. But that would be the necessary consequence of a negative decision…the Court itself would become a hugely important political issue.”
Jake Sullivan replied: “I’m into it but defer to Jen [Palmieri] on this one.” Jennifer Palmieri responded, saying: “She has already been making this an issue. Not sure how in depth you are suggesting but seems like this should be manageable.”
Palmieri then added Clinton press secretary, Brian Fallon, to the conversation. Fallon shot back: “Neera, I can give folks the nod if you want to direct whoever you guys pitch to me.”
In the end, Roberts once again sided with the liberal Justices on the case, declaring that recipients of Obamacare could receive subsidies, even if they were on a federal plan. This ran contrary to the notion that subsidies would only be provided to those on state-run plans.
There’s no telling if Tanden’s efforts and communications with Clinton campaign staffers amounted to much, and if Roberts was indeed pressured into siding with Obamacare out of a fear of politicizing the court. However, these emails provide an unnerving snapshot of leftist thinking as it pertains to radical judicial activism.