The real story is judicial activism run amok

Posted by AzBlueMeanie:

Supreme Court Justices Antonin Scalia and Clarence Thomas rightly have received public scrutiny and criticism of their political activism in recent months. It is unprecedented, and it undermines public confidence in the rule of law and impartiality of justice by the nation's highest court.

But political activism by conservative judges is not limited to the Supreme Court. It has permeated the federal courts at the district court and appellate court levels for years. And it is undermining the rule of law and impartial justice.

The most recent example of political activism by a conservative judge is yesterday's ruling by Florida District Court Judge Roger Vinson striking down the Affordable Care Act. It is a classic case of judicial overreach. As Ezra Klein reports Ezra Klein – GOP judge rules against Affordable Care Act:

Roger Vinson, the second Republican judge to rule on the constitutionality of the individual mandate, has, as expected, ruled against it. More surprising is that he's decided that the presence of the mandate means the rest of the law must be overturned, too, which is an extremely radical step. The full ruling has a very Bush v. Gore feeling, as Vinson concedes that his position is activist in the extreme and a break from the court's usual preference for limited rulings, but says, in effect, that he's going to do it just this once. "This conclusion is reached with full appreciation for the 'normal rule' that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute," Vinson writes, "but non-severability is required based on the unique facts of this case and the particular aspects of the Act. This is not a situation that is likely to be repeated." Italics mine.

That puts Vinson on the far right of this debate: Previously, Henry Hudson had ruled the individual mandate unconstitutional but the rest of the law constitutional, and Norman Moon and George Steeh had ruled both the mandate and the rest of the legislation constitutional. So there's currently a 2-2 split: The judges appointed by Democrats think the law constitutional, and the judges appointed by Republicans think the law varying degrees of unconstitutional. Whatever happens to the legislation at the end of the day, the clear level of politicization in the judiciary is getting its day in the sun.

Jonathan Cohn adds Judge Vinson's Decision On The Affordable Care Act And How Politics Affects The Courts | The New Republic:

Did Roger Vinson, the federal judge who on Monday ruled the Affordable Care Act unconstitutional, have a particularly conservative take on politics as well as the law? His ruling certainly suggests as much. There’s what looks like a shout-out to the Tea Party–specifically, a reference to the American Colonists' outrage over the tax on tea. (Page 42.) There’s the gratuitous reference to General Motors as “partially government-owned.” (Page 45.) And there’s the use of President Obama’s campaign rhetoric against the law Obama now supports. (Page 68).

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But perhaps the clearest indicator of bias in the decisions against the Affordable Care Act is the gist of the decisions themselves. For generations, conservatives have championed “judicial restraint.” If judicial restraint means anything, it means deferring to the Congress on matters of policy preference–like, for example, whether it’s better to run a national health insurance system with a system of regulated private insurance (which is what people will get with the Affordable Care Act) rather than via a single-payer, government-run plan (which is what the elderly already get with Medicare). But if these these decisions by Judges Vinson and Hudson carry the day–and, please remember, two federal judges have already ruled the other way–they would effectively take that discretion away from the Congress.

Simon Lazarus writes at the American Constitution Society blog ACSblog | In Today’s Health Care Ruling, a Whiff of Bush v. Gore:

Today's decision in Florida federal district court striking down the Affordable Care Act in its entirety would effectively shred the Constitution as it has been interpreted, applied, and endorsed across a broad ideological spectrum for the last three-quarters of a century – since the New Deal – and, actually, dating back to Chief Justice John Marshall's expansive interpretations of the constitutional provisions directly at issue here. This decision, along with Judge Henry E. Hudson's recent decision to strike essential parts of the ACA, exhume the long-dead and discredited doctrines that the pre-New Deal Supreme Court deployed to overturn laws that prohibited child labor, prescribed minimum wage levels and maximum hours. [The substantive due process rational of the Lochner era.]

Among those who have joined in rejecting the century-old, long-defunct decisions on which Judge Roger Vinson's decision rests, are Justices Scalia, Kennedy, and Chief Justice Roberts. They will have to twist their prior decisions and statements into pretzels in order to rule the individual mandate or other ACA provisions unconstitutional.

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Just last year, Roberts joined the Court's decision upholding an aggressive application of the necessary and proper clause, underscoring the black-letter law rule that the necessary and proper clause is independent of specifically enumerated powers such as the commerce clause.

None of these statements and rulings are legitimately compatible with the decisions by Vinson and Hudson to strike down the individual mandate.

Both decisions give off more than a whiff of Bush v. Gore, especially Judge Vinson's sweeping and unsubstantiated ruling that striking the mandate requires striking the entire ACA.

In fact, in a recent case with potential implications for legal challenges to the Obama health-care reform law, the US Supreme Court in January refused to examine whether Congress overstepped its authority when it made it a federal crime for a convicted felon to possess a bullet-proof vest. Supreme Court: Did it just hint at stance on a health-care law challenge? – CSMonitor.com:

The key question in Alderman v. US was whether there are limits to Congress’s ability under the Constitution’s commerce clause to outlaw a local, intrastate activity like wearing body armor.

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Had the high court taken up the Alderman case, it would have signaled a willingness by the justices to closely examine what limits, if any, apply to congressional power under the commerce clause.

The issue has been a contentious one at the Supreme Court since 1995 when the justices handed down their first decision in 50 years limiting the sweep of Congressional authority under the commerce clause. Analysts had been watching the Alderman case for a hint of which direction the justices might take on the broader commerce clause question – and perhaps on the health care case.

The majority's decision, rendered without comment, could make it more difficult for those challenging health insurance reform to win court orders overturning parts of the new law. Supreme Court ruling hints of difficulty for Obama insurance law foes – Los Angeles Times:

The denial was met by a sharp dissent from Justices Clarence Thomas and Antonin Scalia, the court's two foremost proponents of limiting Congress' regulatory power.

"Today, the court tacitly accepts the nullification of our recent Commerce Clause jurisprudence," wrote Thomas in a seven-page dissent.

The court's failure to act "threatens the proper limits on Congress' commerce power and may allow Congress to exercise police powers that our Constitution reserves to the states," he said.

So we have the intellectually dishonest and political activist Justices Scalia and Thomas showing their hands. But they are only two votes.

Alderman v. US is part of a series of recent cases under the commerce clause and the necessary and proper clause in which the court has upheld broad congressional authority. The U.S. Supreme Court would have to reverse its recent line of decisions, in fact, reverse more than three-quarters of a century of jurisprudence to return to the long-discredited Lochner doctrine upon which the decision of Judge Roger Vinson rests in error. I don't see that as realistic.

But then the Court violated all of its rules in Bush v. Gore, so who the hell knows?

This press release by Stephanie Cutter from the White House lays out the case. Judicial Activism and the Affordable Care Act | The White House.