Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Much ink has been spilled, or electrons rearranged, debating whether the Supreme Court’s decision on the Affordable Care Act will be restrained or activist, principled or political, injurious or harmful. The discourse, by and large, has focused on the arguments presented to the Court and the predilections of the Justices in assessing them. But that dialogue begins with the second act, the proceedings before the Supreme Court. It misses the plot development of the first, where a partisan legislative battle spawned an extravaganza of political law-fare in the lower courts. Congress passed the health care legislation on March 23, 2010, without a single Republican vote in either House. Republicans immediately promised to repeal it, with one Congressman vowing to “meet the federal government at the state line to keep them from mandating this bill upon us.” Seven minutes after the President signed the bill into law, the Republican Attorney General of Florida, along with 11 other Republican State Attorneys General, plus one Democrat from Louisiana, filed suit. Four of the Republican Attorneys General joined the suit over the objections of their State’s Democratic Governor. Virginia’s Republican Attorney General sued separately.
Bypassing the federal courthouse only six blocks from his office in Tallahassee, the Florida Attorney General sued more than 200 miles away in Pensacola, a jurisdiction that had no connection to any party or any issue in the case. What it had was a bench of three federal district court judges, all conservatives appointed by Republican Presidents. While this forum shopping was allowed under the federal rules, it accentuated the cynical view of our court system and partisan coloration of the case.
As the suits proceeded seven more states joined the Florida suit. Three were represented by their Republican Attorneys General. In the other four, however, the Attorneys General were Democrats, and they refused to sue, so the Republican Governors filed instead.
Seven months after a court-ordered deadline for adding new parties, in January 2011, four more Republican Attorneys General and one Republican Governor sought to bring their states into the litigation. Why the belated interest in the lawsuit? The November 2010 elections. The states’ leadership had changed from Democratic to Republican. Despite the missed deadline, the District Judge granted the motion to add the new parties less than 24 hours after it was filed -- without waiting for the federal government’s response. (The same Judge, in an unprecedented assertion of judicial power, later struck down not just the requirement that individuals purchase health insurance, but the entire Affordable Care Act, including provisions such as abstinence education far afield from the insurance mandate.)
Opponents of the Affordable Care Act have been unabashed about the partisan tinge of the challenges. With no apparent sense of irony, a Wall Street Journal editorial in January 2011 urged “Republican governors” to join the lawsuit. Tim Pawlenty, then a Republican candidate for President, echoed that call in the same partisan terms. And in a speech to the conservative Federalist Society, Senate Minority Leader Mitch McConnell described the Republicans’ two pronged strategy: seeking repeal of the health care law in Congress while simultaneously attacking it in the courts.
To be sure, the increasing divergence in the political philosophies of the Republican and Democratic Parties may go a long way toward explaining the homogeneity of the opposing camps in the litigation. But it does not go all the way. In the adjudication of constitutional issues, designed to be insulated from the political rough and tumble, there is no reason to believe that all virtue is encamped on one side of the aisle, that party preference and constitutional rectitude precisely coincide. The health care litigation provides a case in point. Of the 47 Republican Senators who filed amicus briefs arguing that the individual mandate is unconstitutional, 10 had previously sponsored legislation mandating insurance coverage. Indeed, Senator Charles Grassley told Fox News on June 19, 2009 that there was “a bipartisan consensus to have individual mandates.”
Although Democrats are almost as consistent in defending the constitutionality of legislation as Republicans are in attacking it, their positions are not in parity. Legislation is presumed to be constitutional. It is Republican Attorneys General and Governors, supported by Republican members of Congress, who departed from the default position, who took the initiative to bring the challenges and who seek to displace the verdict of the elected branches of government. It is thus the lineup of the challengers of the law, not the defenders, that raises concerns about the democratic process. The seamless congruity between party affiliation and asserted constitutional grievance, viewed against the backdrop of the political u-turns key Republicans took to get there, are at the very least a signal the possiblity that partisanship has escaped the confines of the legislature, that the plaintiffs seek to win in the courts the battle their brethren-in-arms lost in the Congress, and that the case presents policy choices vested in elected legislators, not constitutional issues suitable for judicial resolution.
Within the confines of the legislature, political partisanship plays a useful, perhaps even an essential role. But it has no valid place in the judicial process. Our constitutional democracy rests on the principle of majority rule, and the majority rules through their elected representatives in Congress and the Executive Branch. The circumstances where the Supreme Court may override decisions of the majority and declare a law unconstitutional are few, primarily when the political process breaks down -- as when minorities are excluded -- or when the most fundamental individual rights are at stake. It is generally accepted that the Court should not nullify a Congressional act unless it is unmistakably clear that the law at issue violates the Constitution. When courts defer in this manner to outcomes of legislative debates, rather than re-enacting the drama, the factiousness of the legislative process recedes -- or at least it should. The Court derives legitimacy by remaining above the political fray. It diminishes that capital when it constitutionalizes political controversies, and particularly when it does so by picking a side in a partisan dispute. The Court is not, as some have claimed, immune from public cynicism. Polls show that its standing has eroded of late as it has displaced the judgments of the political branches.
The partisan origins or purposes of a particular case, of course, do not relieve the Court of the obligation to resolve fundamental constitutional questions. Nor is a legal argument less legitimate just because those advancing it have a political agenda. But where, as here, no precedent establishes the constitutional infirmity of the statute at issue, where the Court is called upon to draw new lines, and where the proponents of the suit are political officials pursuing a result that they and their allies failed to achieve in Congress, the Court must assess carefully whether the legal arguments are merely the lipstick on a political dispute. Justice Frankfurter’s warning some 60 years ago is still apt today: “History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures.”
Some of the Nation’s most respected conservative judges and scholars have echoed this view and tried to deflect the Court from the treacherous political trail the health care plaintiffs seek to blaze. Judge Laurence Silberman of the Court of Appeals for the D.C. Circuit -- who received the Medal of Freedom from President George W. Bush for his vigilance as “a clear-eyed guardian of the Constitution” -- upheld the Affordable Care Act as constitutional. In so ruling, Judge Silberman emphasized “the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.”
In the same case, Judge Brett Kavanaugh, often touted as a potential Supreme Court nominee in a Republican Administration, also stressed the importance of consigning political issues to the political branches of government: “The elected Branches designed this law to help provide all Americans with access to affordable health insurance and quality health care, vital policy objectives. This legislation was enacted, moreover, after a high-profile and vigorous national debate. Courts must afford great respect to that legislative effort and should be wary of upending it.”
Judge Jeffrey Sutton of the Sixth Circuit, a former law clerk for Justice Scalia and also one of the conservative intellectual leaders on the bench, likewise urged judicial restraint. Citing the dispute in the early days of the Republic regarding the constitutionality of the national bank, Judge Sutton observed that, “Today’s debate about the individual mandate is just as stirring, no less essential to the appropriate role of the National Government and no less capable of political resolution. Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.”
And Judge J. Harvie Wilkinson, a Reagan appointee to the Fourth Circuit and another leading conservative intellectual, made his warning even more explicit. In a recently published book on constitutional theory, he wrote that, “The idea that Congress is constitutionally disabled under the commerce power from regulating activity affecting one-sixth of the national economy strikes me as a heavy judicial lift. Any decision that is less than bulletproof will be seen as a purely political undertaking, a revival of Lochner’s freedom of contract theory in originalist guise.”
Leading conservative scholars also have cautioned the Court not to venture into the political domain. Harvard Law School Professor Charles Fried, Solicitor General in the Reagan Administration, specifically addressed the political overtones of the opponents’ primary attack on the Affordable Care Act, that it impermissibly regulated “inactivity.” “As a political argument,” Fried said, “that resonates: ‘Don’t Tread on Me,’ trumpets the imperishable spirit of American liberty. But as a constitutional argument, it would imbue judges with unprecedented powers to topple an exhaustively debated and duly enacted federal law.” In an interview, Professor Fried elaborated on his concern that striking down the Affordable Care Act “would be more problematic than Bush v. Gore. It would be plainly at odds with precedent, and plainly in conflict with what several of the justices have said before.”
Orin Kerr, a well known law professor with a libertarian bent (and no fondness for the health care law), noted the “obvious political valence of the mandate challenge.” Professor Kerr worried that “any decision striking down the President’s signature legislation would have enormous political ripple effects. Given that the theory behind the challenge was largely made up to stop the mandate, and it’s hard to imagine more than 5 votes to strike down the mandate, that would make the Supreme Court a political player in ways that dwarf recent examples.”
Professor Henry Monaghan of Columbia Law School, another luminary of the conservative legal academy, made clear his disagreement with the health care law as a matter of policy. Nonetheless, he wrote, “the appropriate judicial response to such a complaint has long been clear. The Court was admirably forthright about the point in its ruling in Munn v. Illinois in 1876: ‘For protection against abuses by the Legislature, the people must resort to the polls, not the courts.’”
Judicial restraint requires little self-knowledge or discipline when the proper legal result aligns with the judge’s political sympathies and policy preferences. The real test comes when they are out of synch. It is critical that the Court pass that test. Thoughtful conservative judges and scholars appear to have recognized not only the substantive weakness of the attack on the health care law, but the institutional harm that would result from a decision striking it down on a vote aligned with the prior political affiliations of the Justices, the partisan division of the litigants, and the party lineup on the legislation itself. The Court would do well to heed these warnings.
Rob Weiner, formerly Associate Deputy Attorney General in the United States Department of Justice, is a partner at Arnold & Porter LLP. You can reach him by e-mail at robert.weiner at aporter.com Posted
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