The health care litigation season is in full swing. The latest salvo was fired a few weeks back, in Mead v. Holder. This is only the latest on what promises to be a be a busy season for health care litigants. For anyone paying attention, the scorecard now reads 3-2, with federal judges appointed by Democratic presidents upholding the law while judges appointed by Republican presidents striking it down as unconstitutional.
But it would appear that not all rulings are made alike. According to the Times, "[e]normous attention has been focused on rulings by two federal district judges who found the new health care reform law unconstitutional. Less attention has been paid to rulings by three judges who upheld the law’s constitutionality." This is fair as far as it goes, but I think it misses the real story of this litigation. This is really a story about judicial review and the stories we tell ourselves and out students.
We love to tell ourselves that judicial independence is a virtue and a central element of our constitutional tradition. This is because, the story goes, judges must be insulated from political pressures in order to render rulings that are grounded in the Constitution, rather than abdications to raw politics. The problem with this story is not only that judges cannot be as insulated as the judicial independence mythology requires, but that the public filters their judicial output through its own partisan biases. That is to say, not only are judges affected by their own partisan preferences, but so is the public that consumes these judicial opinions. This is no way to run a constitutional democracy.
Take the health care litigation as a leading example: while Republicans and Libertarians see a central government overreaching into areas it has no business regulating, Democrats point to the constitutional tradition post-1937 and the growth of the regulatory state. There is very little agreement between the two camps. That the judges deciding these cases are closely tracking the partisanship of their appointing president does not help matters at all.
The same goes for Citizens United, the looming challenge to the constitutionality of the Voting Rights Act, Bush v. Gore, and just about any case I can think of. This is what made the recent Snyder case intriguing: the fact that eight of the nine justices agreed that hate speech is a value worth upholding is a big deal.
The question for the future is whether the public will ever discover that the emperor has no clothes. Or better yet, whether the public even cares.