Judge Barrett and the Affordable Care Act

Gerard N. Magliocca

The first day of Judge Barrett's confirmation hearings is a good example of how political considerations can get in the way of a clear understanding of the relevant legal issues or concerns.

Case in point. Democrats spent most of today arguing that Judge Barrett will probably vote to invalidate the entire Affordable Care Act. The problem is that we have a contrary piece of information. In a moot of Texas v. California held not long ago, Judge Barrett (according to media reports) reached the opposite conclusion. Thus, the relevant question is whether Judge Barrett should recuse herself from the case in the interest of fairness to the opponents of the ACA.

Consider a hypothetical. A law school holds a moot court competition. They invite Justice X to be on the panel. The law school tells Justice X that the case for argument is one that the Supreme Court will hear in its upcoming Term. Justice X would almost certainly decline the invitation on the ground that she could not properly participate in such a moot court and then hear the case for real. I'm pretty sure that all of the current Justices would take that view. How, then, can Judge Barrett not recuse in Texas v. California?

This question, though, will probably not be asked in the hearings. Why not? Democrats won't ask because that would foul up their story that Judge Barrett is out to get the ACA. Republicans won't ask because they don't want to ask Judge Barrett a challenging question. As a result, we probably won't find out what Judge Barrett thinks of the recusal issue until she is confirmed and must decide her herself if she can properly sit in Texas v. California.    

UPDATE: In response to a question today, Judge Barrett said that in the moot court she voted that the individual mandate was unconstitutional but severable. I still don't see how she can go forward and sit on the case if confirmed in time. The opponents of the ACA have an excellent argument for her recusal.