Daily Archives: October 12, 2010

The First Verdict

I just wrote a piece about the challenges being mounted against the implementation of health reform by its opponents. One of those was that the issue could be decided in the courts. Well, last Thursday, the first judicial ruling came out. The case of Thomas More Law Center v. Barack Obama was decided by U.S. District Judge George Steeh, and he found that health reform–or more specifically, the individual mandate–was constitutional. (You can read his decision here.) As I explained before, if the individual mandate gets struck down by the courts, it effectively eviscerates health reform. Since courts tend to rely on precedent, this first “victory” is important, but it isn’t the final say by a long shot. A number of other District courts will rule, and this issue will most likely weave its way to the Supreme Court.

There are 9 justices there, and it will take 5 of them to decide that the individual mandate is unconstitutional. Judge Steeh’s ruling may or may not reflect how the Supreme Court will rule. The thing is, judges aren’t outside of politics. Sure, the members of the Supreme Court and District Courts are appointed for life, rather than elected. On the one hand, this means that they need not judge in such a way as to please the people. After all, justice is a stand-alone quality, right? Moral principles, for example, do not change based on popular opinion. The catch is to be found in that word “appointed.” The President has the job of appointing the District judges and nominating the Supreme Court justices (who are subject to Senate confirmation). It should be obvious that Presidents nominate and appoint judges who share their own political views (to the extent that such can be gleaned from past decisions and the like).

The judge who ruled in favor of health reform in Michigan was appointed by President Clinton. He sided in favor of the Democrats’ reform law. The Supreme Court looks different. Two were appointed by Ronald Reagan, one by George H.W. Bush, two by Bill Clinton, two by George W. Bush, and two by Barack Obama. If you’re doing the math, that’s five justices appointed by conservative presidents and four appointed by liberal presidents. That means essentially that one justice–just one non-elected official–could determine the fate of health reform in this country. Most would say that that person is Justice Anthony Kennedy, who is traditionally considered the swing-vote in 5-4 decisions. Does the result in Michigan really mean anything? Let’s hope Justice Kennedy thinks so.

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