Domestic, Most Recent Column, Op-Ed, Opinion — March 28, 2011 at 6:18 am

Judges Becoming Policymakers

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In Law’s Empire, New York University’s Frank Henry Sommer Professor of Law and Philosophy Ronald Dworkin observed that, “people often stand to gain or lose more by one judge’s nod than they could by any general act of Congress or Parliament.” These words didn’t strike me as particularly insightful when I was casually flipping through his book two years ago. Last month, I was suddenly and powerfully reminded of these words when it was reported that a 71-year-old judge named Roger Vinson in the Florida District Court struck down the Patient Protection and Affordable Care Act in its entirety.

The PPACA was the single most impressive legislative achievement since President Obama took office in January 2009. It was the product of decades of bitter partisan combat in both houses of Congress. Even before I read the judge’s opinion, I could not help but feel deeply disturbed by the fact that a quintessentially democratic issue was settled undemocratically. Even if it turns out Vinson’s reasoning is perfectly sound on legal grounds, I am sure I would continue to feel that this decision, if upheld by the Supreme Court, would do an irreparable damage to the most basic principle underpinning this democracy—the principle of self-governance.

Perhaps Supreme Court Justice Sonia Sotomayor said it best when she commented in 2005 that the U.S. Court of Appeals “is where policy is made.” I realize that she did not mean that judges are justified in letting their political predilections influence their legal decisions. Nor do I believe Vinson reached a decision unfavorable to Democrats because he was nominated by a Republican President. But forget about the right intentions and motivations, and just look at the result—Vinson made a decision which has potentially monumental political consequences.

In his recent discussion in the University of Pennsylvania Law Review, Yale Law’s Knight Professor of Constitutional and First Amendment Law Jack Balkin asked: “Can the American people, acting through their democratically elected representatives, require adults to purchase health insurance for themselves and their families as part of a comprehensive health care program?” David Rivkin and Lee Casey, partners at Baker & Hostetler law firm, seemed to disagree with the primes of his question: “The whole point of the Constitution is that it limits what can be done by the democratically elected representatives of the American people.” Point taken.

Yet, given the stakes, as well as the enormous amount of public deliberation that went into the process of drafting and passing this healthcare legislation, it seems counterintuitive that an unelected judge can so casually brush aside the political aspects of this case and can categorically state that, “it is not really about our health care system at all. It is principally about our federalist system.”

In reality, though, it is as much about the health care system as it is about the federalist system. Without doubt, American citizens will accept whatever final verdict will be handed down from the Supreme Court. However, should the Justices reach a decision to strike down the PPACA, they should do so with the knowledge that in doing so they are going headlong against the full force of the democratic process that ushered in this legislation and the American voters, who expect to see a very compellingly written judicial opinion.

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3 Comments

  1. I think the following is your best argument:

    “In reality, though, it is as much about the health care system as it is about the federalist system. Without doubt, American citizens will accept whatever final verdict will be handed down from the Supreme Court. However, should the Justices reach a decision to strike down the PPACA, they should do so with the knowledge that in doing so they are going headlong against the full force of the democratic process that ushered in this legislation and the American voters, who expect to see a very compellingly written judicial opinion.”

    This reality is not lost on judges. In a world of informed voting, judges would be at best redundant and at worst dangerous obstacles to representative government. However, in a world of informed voting pigs would likely fly. The job of a judge seems to be to reconcile and balance precedent and present politics. This isn’t all too unlike Dworkin’s Hercules.

    Often times there is simply no reconciling. In the case of reproductive rights, the Court has tilted toward precedent, opting not to rip a woven fabric of society and law. However, in contract law (think back to like Lochner and West Coast Hotel) the Court went with politics, seeing that right to contract was simply too detrimental to society to stand. Call it what you will – Rousseau’s General Will, Rawl’s Legislator – but judges, especially activist ones, tend to just go with whatever they feel is in the best interest of society and then backfill the legal reasoning. The hope is that internal politics don’t play too much into it and that judges are really doing what they feel is best for society.

  2. I appreciate the point you bring up on this complicated issue. I agree with Stevenson, sometimes we find ourselves just having to hope that decisions are being made for the betterment of society.

  3. Taylor Thompson who is a CPR web editor and op-ed columnist (check out his op-ed pieces if u want!), gave me some excellent feedback and raised a few objections to the point i made.

    “This seems contradictory to me. Self-governance and democracy depend on an independent judiciary, or else the whole thing spins apart.”

    “But isn’t that the role of a judge? To set aside the politics of the issue and decide whether the law is compatible with the Constitution?”

    Well, in my next column, I’d going to explore these questions and try to provide some legal arguments for why Vinson’s decision might be wrong vis as vis the Constitution

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