Politically-minded judges

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Shocker: A Court Decision Tinged with Politics
By Jonathan Cohn | February 3rd, 2011 

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).

Nor is the first time a judge invalidating the Affordable Care Act may have tipped his political hand. Henry Hudson, the federal judge who issued a narrower ruling against the law late last year, noted in his decision that the bill was rushed through the legislative process — which is a strange way to describe a law nearly fourteen months in gestation, unless you are trying to argue there was something fundamentally illegitimate about the process that produced it.

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.

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