Judicial independence depends upon the public's confidence that the federal judiciary is something more than a third political branch. Correspondingly, judicial independence has never been more imperiled than it is today, for at least two reasons.
One is that for the first time in the modern era, with the retirement of two Republican appointees who turned out to be judicial moderates and their replacement by Democratic-appointed successors, today the ideological lines on the U.S. Supreme Court closely match partisan political lines. This allows news coverage of the Court and its decisions to state that five Republican appointees voted a given way while four Democratic appointees voted the other, as exemplified in coverage of the Court's 5-4 ruling two months ago in AT&T v. Concepcion.
Second, in one of the highest profile legal challenges facing the federal judiciary in recent times, we have seen three Democratic-appointed District Court judges vote to uphold the constitutionality of the Patient Protection and Affordable Care Act, while two Republican-appointed judges have voted to overturn it. The lead of just about every story last month covering the appeal of one of those rulings to the U.S. Court of Appeals for the Fourth Circuit, noted that all three judges assigned to the case were Democratic appointees -- strongly suggesting that this was all you needed to know to figure out the likely outcome. Similarly, going into the Sixth Circuit argument Wednesday, the implication of many observers was that that court would eventually split 2-1, with the two Republican appointees on the panel voting to strike down the law and the Democratic appointee voting to uphold it. Reports of the actual argument, however, cloud that picture somewhat.
Ideological divisions on the bench are inevitable and not always a bad thing. Judges shouldn't be asked to check their most deeply held beliefs when they put on their robes. In close cases, where the Constitution or the law is most ambiguous, judges will inevitably rule in part based on the totality of their experiences and values. But for the judiciary to deserve and retain its independence -- which is its force as the ultimate arbiter of the law -- there must be limits on the extent to which ideological considerations can impact judicial decision-making. The law must trump ideological considerations, especially in instances when political pressures are at their highest. In order to deserve the public's trust, and to highlight the triumph of law over politics, the public has to see judges following the law at important moments, even when doing so requires ruling against their political commitments.
Obviously this must be a two-way street. I was deeply disturbed last term, for example, when the Supreme Court's four liberals turned legal somersaults in order to rule that the Second Amendment -- apparently alone among the substantive provisions of the Bill of Rights -- does not limit state action. Similarly, I remain amazed that Justices Scalia and Thomas were willing to join an Equal Protection-based opinion in Bush v. Gore that is in direct contradiction to those Justices' core understanding of the meaning of that Clause.
In the health care context, what is most disturbing about the results so far and the coverage of these results is that there is very little recognition of the deep split in conservative circles about revisiting long-discredited ideas about the constitutional powers of the federal government, in order to strike down the work of the democratically elected branches.
For example, just last term in United States v. Comstock, Chief Justice John Roberts broke with his conservative colleagues and joined the Court's four more liberal members in a sweeping opinion, expansively interpreting the Constitution's Necessary and Proper Clause. In the Fourth Circuit, Judge J. Harvie Wilkinson, a conservative who was on President George W. Bush's short list for the Supreme Court, has waged a heated battle with that court's other conservative members arguing for judicial restraint and against conservative judicial activism. At one point, in upholding the Endangered Species Act from a Commerce Clause challenge, Judge Wilkinson delivered a stinging rebuke to then-Judge Michael Luttig, saying "it cannot be that the mere expression of judicial derision for the efforts of the democratic branches is enough to discard them."
The exact same statement could be made about rulings like that of Virginia-based U.S. District Judge Henry Hudson striking down health care reform.
The real shame of the Fourth Circuit's health care hearing last month is that, because that panel consists of only Democratic-appointed judges, any ruling by that court upholding the Affordable Care Act will undoubtedly be discounted as the work of Democratic appointees. On the other hand, the coverage of the Sixth Circuit argument Wednesday suggests that Judge Jeffrey Sutton, a hero to the legal right, was having real qualms about the challenge to the Act brought by the Thomas More Law Center. The truth is that any constitutionally-faithful judge on the bench, regardless of how he or she feels about the political wisdom of the Act, should be as skeptical of the Act's challengers' flawed legal arguments as the three Democratic-appointed judges were in the Fourth Circuit last month.
As these challenges continue to make their way through the courts, what is desperately needed is a conservative voice -- perhaps Judge Sutton in the Sixth Circuit, or maybe Chief Judge Joel Dubina in the 11th Circuit, or Judges Brent Kavanaugh and Laurence Silberman in the D.C. Circuit, assigned to health care panels in their circuits -- who, like Judge Wilkinson, is courageous and cares enough about the institution of the federal judiciary to follow the law rather than partisan politics.
This piece is cross-posted from TPM Café.
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However in this country it's now even worse then that, we have bad and ideologically motivated people that set the course of this country couple of decades ago!
Most (if not all) of those Supreme Court justices are as partisan as they come.
Most of the judges lower down the food chain are no different.
It's a roll of the dice when they retire or die, but the repubs have been very successful in intimidating the dems with their appointees.
Clarence Thomas?
Wasn't it Hillary who spoke of the right wing conspiracy?
Get used to it.
Until our government is reforged to limit its size and scope to the preservation of freedom, politics will continue apace in every branch of government, indeed, in every division of government, no matter how small.
Better re-read.
Everything since, including the "general welfare" is mere bastardization and binds no one.
Size may matter but in the opposite way. Smaller goverment is fewer people and cheaper to buy!
So by that logic we should end welfare and food stamps. Many inner city single mothers are very religious. They may give a portion of their AFDC check to their church or perhaps use a portion of their food stamps to by a cake for the church bake sale.
The liberal dissent was actually a personal opinion. Thier thinking goes like this: "We like welfare and we like food stamps because those programs increase the power of the government. But we don't like school choice because that program reduces the power of the government".
The Supreme Court justices are NOT impartial a good deal of the time.
Which way they rule depends on the composition of the court....the ratio of conservatives to liberals (Repugs to Dems).
problem? I think so!
And it is as important as our downward spiraling middle class and the huge class war that is on the horizon if the number of Americans in poverty continues to increase and the rich get richer.
But maybe that is what the right wing wants - maybe they are driven by a self destructive impulse to start a second civil war in the U.S., and they want to make sure they take the rest of the country down with them.
...it's 250 years of legal "progress" that has abandoned the Constitution...
BTW - Hudson's argument was compelling.
If Obamacare is not overturned on the mandate... we are on a slippery sloap to total government control over our lives...
I know that makes liberals like you happy but its certainly NOT WHAT OUR FOUNDERS INTENEDED..... EVER!!
Recusal occurs when a judge has a conflict of interest in the subject of the case. Keegan has no conflict of interest - simply having supported the issue in a past life as an attorney is not a conflict of interest. On the other hand, Thomas has a direct conflict of interest since he and his wife are accepting bribes to influence Thomas's vote on the issue. This is the most egregious form of conflict of interest. And if Thomas does not recuse himself, then he should be prosecuted and impeached for accepting a bribe.
Conservative Judge- BAD. Got it.
I don't know how the issue has been framed in the briefs, but there is in fact a legitimate constitutional question with regard to PPACA's individual mandate: is Congress constitutionally empowered to force Americans to purchase an expensive product from a weakly regulated, un-price-controlled, oligopolistic, largely for-profit private industry? My sense is that the very most Congress *should* be empowered to do is to require that everyone participate in a nonprofit insurance scheme that is so heavily regulated, price-controlled, subsidized, and egalitarian as to be functionally indistinguishable from a government-run health insurance system. The multi-payer systems used by France, Japan, and Switzerland would probably qualify; PPACA clearly does not.
Here's my assessment: Kennedy, Roberts, Alito, Thomas, and Scalia will be torn between their ideological affinities and their financial affinities in deciding this issue. Ideologically, they will probably bristle at the thought of endorsing the individual mandate. Financially, on the other hand, for-profit concerns in the healthcare sector are going to make out like *bandits* under PPACA. I suspect the opinion will make for interesting reading.
These two were utterly predictable in twisting the Constitution to mean whatever they wanted it to mean.
Recently, the Liberal justices twisted themselves into knots in arguing against the Arizona law requiring businesses to use a Federal database to verify the citizenship or legal residency of job applicants. Their arguments, especially those of Judge Sotomayor, were so weak, so obviously contrived, as to be laughable.
Just because you don't like it, or disagree, does NOT make something a weak argument. Scalia's dissent against the independent counsel law, for instance, was brilliant, and I disagree with the man on at least 80% of decisions.
EG: I think it is "good for the country" to resist the government FORCING me to buy a product I may/may not want from a private company CHOSEN by the govt at a price DETERMINED by the govt and then PUNISHING me through the IRS if I don't comply.
I hope that isn't too complicated an arguement for ya.
Thomas, on the other hand, is simply a tool, and is clearly the weakest brick of the Court.
So it used to be that a president's court picks could reflect one segment or another of their party, and it would matter more than the difference between parties. Now a jurist's legal philosophy implies a clear partisan designation, and a president of either party would be foolish to ignore that.
Separate point, re "Judicial independence depends upon the public's confidence." It's not clear that the dependence is primarily in that direction. The institutions should be designed so that judges are independent, and remain independent even if the opinion polls don't believe it. State judges are often elected, and are thoroughly dependent on their campaign donors.