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.
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