Obama's health care lawsuits: Should we reconsider judicial review?

The law, lawyers, and the court.
May 16 2011 10:33 AM

Judicial Review Under Review

Should the legal arguments over Obama's health care law force us to reconsider the role of the courts?

A gavel. Click image to expand.
Should we reconsider judicial review?

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.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

So we can already start writing that 2-1 decision.

Advertisement

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.

TODAY IN SLATE

Foreigners

More Than Scottish Pride

Scotland’s referendum isn’t about nationalism. It’s about a system that failed, and a new generation looking to take a chance on itself. 

What Charles Barkley Gets Wrong About Corporal Punishment and Black Culture

Why Greenland’s “Dark Snow” Should Worry You

If You’re Outraged by the NFL, Follow This Satirical Blowhard on Twitter

The Best Way to Organize Your Fridge

Politics

The GOP’s Focus on Fake Problems

Why candidates like Scott Walker are building campaigns on drug tests for the poor and voter ID laws.

Sports Nut

Giving Up on Goodell

How the NFL lost the trust of its most loyal reporters.

Is It Worth Paying Full Price for the iPhone 6 to Keep Your Unlimited Data Plan? We Crunch the Numbers.

Farewell! Emily Bazelon on What She Will Miss About Slate.

  News & Politics
Weigel
Sept. 16 2014 7:03 PM Kansas Secretary of State Loses Battle to Protect Senator From Tough Race
  Business
Moneybox
Sept. 16 2014 4:16 PM The iPhone 6 Marks a Fresh Chance for Wireless Carriers to Kill Your Unlimited Data
  Life
The Eye
Sept. 16 2014 12:20 PM These Outdoor Cat Shelters Have More Style Than the Average Home
  Double X
The XX Factor
Sept. 15 2014 3:31 PM My Year As an Abortion Doula
  Slate Plus
Slate Plus Video
Sept. 16 2014 2:06 PM A Farewell From Emily Bazelon The former senior editor talks about her very first Slate pitch and says goodbye to the magazine.
  Arts
Brow Beat
Sept. 16 2014 6:23 PM Bryan Cranston Reenacts Baseball’s Best Moments to Promote the Upcoming Postseason
  Technology
Future Tense
Sept. 16 2014 6:40 PM This iPhone 6 Feature Will Change Weather Forecasting
  Health & Science
Science
Sept. 16 2014 4:09 PM It’s All Connected What links creativity, conspiracy theories, and delusions? A phenomenon called apophenia.
  Sports
Sports Nut
Sept. 15 2014 9:05 PM Giving Up on Goodell How the NFL lost the trust of its most loyal reporters.