It's hard, nowadays, to begrudge anyone his or her constitutional nihilism. Even before oral arguments started last week over the constitutionality of President Obama's health care reform law at the federal appeals court in Richmond, Va., some conservatives were complaining that the result was preordained because the three-judge panel consisted of two Obama appointees and a Clinton appointee. And if liberals want to get a head start on their own freak-outs over the lawsuits, they might well note that the just-announced panel for the June 1 hearings on the Affordable Care Act at the 6th Circuit Court of Appeals in Cincinnati include a George W. Bush appointee, a Reagan appointee, and a Carter appointee.
So we can already start writing that 2-1 decision.
It's not necessarily illogical to make jurisprudential predictions based on judicial politics when it comes to the health reform appeals. The results in every one of the cases about the law have, thus far, perfectly tracked ideology. Three lower courts have upheld the law as constitutionally valid, while two have struck down all or parts of it. No judge appointed by a Democratic president has had a problem with it, while no Republican appointee has voted to uphold it. Based on the recent 4th Circuit hearing, that pattern looks likely to hold, at least in the near term. If there is an enduring political lesson to be learned from all this, it's that Congress should fight over judicial appointments from now until forever.
We might ponder what it is about this law and its legal challenges that has acted to strip away even the patina of judicial objectivity. Certainly the opponents of the law have come up with a novel argument (about congressional regulation of "inactivity") and have argued it forcefully, not only in the courts but in the public arena. But in the end, nothing about that argument nullifies the judicial obligation to read the words of the Constitution and apply precedent, and it remains the case that with a handful of exceptions, virtually all constitutional scholars agree that the ACA is constitutional. We are fighting here over a constitutional metaphor—the regulation of idle citizens—and it's a fascinating conversation, to be sure. But having this discussion is not the same as interpreting constitutional law. Judges who are comfortable referencing Tea Party talking points and Fox News arguments hint at real changes in the role of the judiciary, and signal the possibility that the lines between law, politics, and the media may be blurred for good.
We can also discuss whether the judiciary will suffer a decline in public legitimacy as a consequence of all of these ideologically freighted rulings. It seems to me that it will. Reducing a constitutional issue to a simple tally of which presidents appointed which judges serves only to disparage all judges. Perhaps this total fracture of the judicial branch over the constitutionality of Obama's health care law raises a question liberals don't want to consider: Maybe it's time to stop offering the courts the last word on whether a law stands or falls.
Enter legal and political philosopher Jeremy Waldron, one of the most eloquent opponents of judicial review. In an article he wrote in 2006 for the Yale Law Journal,Waldron argued that judges should not be allowed to have the authority to strike down legislation, period. He urged his readers to bracket their feelings about the outcomes in specific cases and think instead about institutions whose job it is to protect individual rights. Allowing judges to have the last word on the constitutionality of gay marriage, abortion, or capital punishment, he wrote, is fundamentally undemocratic. In countries that do not permit judicial review, the citizens themselves are allowed to decide whether such laws are permissible. Judicial review, he wrote, undermines democratic values "by privileging majority voting among a small number of unelected and unaccountable judges." The United States' system of so-called "strong judicial review," wherein a court can strike down a law in its entirety, stands in contrast to the British system, in which the courts may scrutinize a law to determine if it squares with human rights, but can't invalidate it.
Waldron's arguments make even more sense when you look at them through the prism of the debate over health reform, an argument that has played out chiefly in the media and been caricatured in the courts. In his article, Waldron warns that the process of judicial review distracts attention from the real issues that arise in disagreements over rights. These necessary debates are sidetracked by fights over "precedent, texts, and interpretation." He compares the British legislature debating liberalizing abortion law with the legal opinion in Roe v Wade:
[T]he key difference between the British legislative debate and the American judicial reasoning is that the latter is mostly concerned with interpretation and doctrine, while in the former decisionmakers are able to focus steadfastly on the issue of abortion itself and what it entails—on the ethical status of the fetus, on the predicament of pregnant women and the importance of their choices, their freedom, and their privacy, on the moral conflicts and difficulties that all this involves, and on the pragmatic issues about the role that law should play in regard to private moral questions.
Those are issues that surely need to be debated when society is deciding about abortion rights. I am not so Pollyanna-ish as to believe that they are always given due consideration in political and legislative debates, and there are certainly court opinions that wrestle with profound moral dilemmas. But in general, these are issues that are given more time in legislative debates, and less time in judicial deliberations. More pointedly, the debate we are having in the courts, about the "right" to be left alone to die without health care, has profoundly distracted us from the reality of what it means to be a nation with almost sinfully inadequate health coverage. As a lifelong believer in judicial review, I am struck most forcefully by Waldron's argument that it can sometimes obscure the real issues. The absurdity of the debate over the constitutionality of government-issued broccoli drives that point home in a way that is difficult to dismiss.
Waldron's argument against judicial review should rise or fall on its merits, not your view of the constitutionality of the ACA. We are in a strange holding pattern right now, collectively waiting for the first judge to cross party lines in a health care case. Maybe once that happens, we can all go back to believing in the integrity and infallibility of the judicial branch. Until then, perhaps it's an apt moment to re-examine first principles and think about why we believe in the judicial branch in the first place.