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.