A couple of times yesterday I started up a post on the federal district court judge who ruled that the healthcare reform law was unconstitutional. And both times I killed it because I didn’t really care. This case is going to the Supreme Court, and they don’t give a rat’s ass about the legal arguments of the various district court judges who have ruled for and against PPACA. So Judge Vinson’s decision doesn’t really matter.
But a lawyer friend of mine writes in to say it does matter:
Kevin, this is a classic example of what happens when judges become overtly political, so I have to disagree with one of your posts from a few days ago where you advocated for a more political judiciary.1 We’re all political, and for judges that often serves to slant their opinions, but in our system of precedent there are generally a series of margins they can’t push — such as willfully ignoring Appellate Court or Supreme Court precedent. Like Vinson does when he converts his opinion to a political policy statement. Orin Kerr takes him apart at Volokh Conspiracy. And what’s frightening is that Orin is very clearly right but somehow none of that may matter if this just becomes another exercise in supporting Team Red no matter what the costs.
It’s a heavy subject and I can’t really write about it without sounding like a naif, but for me the struggle to maintain the independence of the judiciary is one of the most important for the country. And political and cavalier (and clearly intentionally unserious conduct) from Article III judges — or worse, appellate and S.Ct. judges — can have devastating effects. (o.k. so much for not sounding like a naif).
The Orin Kerr post he links to makes this point explicitly: district court judges aren’t supposed to decide cases on first principles, as Judge Vinson appears to have done. They’re required to obey precedent from higher courts. And unless the Supreme Court changes its mind, precedent is pretty clearly on the side of PPACA’s individual mandate being constitutional, whether you like it or not:
The words of the relevant Supreme Court cases [Wickard v. Filburn and Gonzales v. Raich] point to an extremely broad power, and Judge Vinson is supposed to be bound by those words. But Judge Vinson concludes that these words can’t be taken at face value because “to uphold [the mandate] via application of the Necessary and Proper Clause would [be to] . . . effectively remove all limits on federal power.”….Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way. Remember that in Raich, the fact that the majority opinion gave the federal government the power to “regulate virtually anything” was a reason for Justice Thomas to dissent. In Judge Vinson’s opinion, however, the fact that the government’s theory gave the federal government the power to “regulate virtually anything” was a reason it had to be inconsistent with precedent.
In a narrowly operational sense, I still don’t think these decisions mean anything. The Supreme Court will decide the fate of PPACA, and they are allowed to overturn precedent if they want to. Still, both Orin Kerr and my legal buddy have a point: both of the decisions ruling PPACA unconstitutional were embarrassing and dangerous. Judge Hudson relied on elementary logical mistakes of the kind that a first-year law student would get marked down for, and Judge Vinson simply decided to make up his own law and ignore precedent entirely. Conservatives really shouldn’t be celebrating these decisions even if they happen to like the results. Rather, they should accept that lower courts need to reason properly based on existing precedent, but then argue that the Supreme Court needs to change the precedent. It’s the only intellectually honest approach, and the only one that isn’t likely to come back to bite them in the ass sometime down the road.
1In my defense, I was only arguing that Supreme Court justices should drop the pretense that they’re purely apolitical creatures, since obviously they aren’t. Plus I was drunk that day.