Health-Care Hypocrites

Has Congress done something you don’t like? Has the president signed a bill that displeases you? Have you just lost a huge political battle? In most democracies, your options in this situation would be pretty much limited to trying to elect politicians who share your views.

But this is America, so there’s always an alternative: Sue the bastards.

That’s just what the attorneys general of 13 states have done by filing a federal lawsuit that claims the health-care reform bill signed into law by President Obama on Tuesday is unconstitutional. Their legal arguments appear to be weak, but as Adam Winkler points out, weak legal arguments have a remarkably good success rate in highly controversial political situations, as long as at least five Supreme Court justices don’t like the policies those arguments aim to reverse.

One would have to still be, I suppose, a naïve young law student to be surprised that many of the decriers of judicial activism have undergone a profound midlife conversion.

• Michelle Goldberg: What the Polls Really Show In the 1980s, when I was a naïve young law student, this point was made almost exclusively by political conservatives (indeed my classmate Ann Coulter liked to yell about it on a regular basis). Members of the recently created Federalist Society railed against “judicial activism,” and “legislating from the bench,” and lamented the torpedoing of Robert Bork’s Supreme Court nomination, which according to them sank because Judge Bork wasn’t willing to confuse “law” with “politics.”

Well quite a few of those people are now federal judges, and a couple of them—John Roberts and Samuel Alito—are actually on the Supreme Court itself. One would have to still be, I suppose, a naïve young law student to be surprised that many of the decriers of judicial activism have undergone a profound midlife conversion, and have discovered that only a cadre of courageous federal judges stand between us and the tyranny of majority rule.

In the blogosphere, this conversion experience often has a positively Orwellian flavor. Conservative commentators who have spilled barrels of metaphorical ink condemning judges who fail to defer to legislative policy choices are suddenly giddy with excitement at the prospect of destroying health-care reform through judicial legislation.

Except, of course, they don’t call this legislating from the bench. They call it “the rule of law.”

All this raises the question of whether charges of “judicial activism” and “legislating from the bench” are ever anything more than code words for court rulings that have political consequences the critics of those rulings don’t like.

The answer is far from clear, but the following things shouldn’t be in serious dispute. First, arguments about an issue like the constitutionality of the health-care reform bill are, as a practical matter, simply a form of politics by other means. If that strikes you as an overstatement, try to find someone who supported the bill as a matter of policy, yet who nevertheless thinks its constitutionality is in doubt. Your search will be about as successful as a search for someone who is opposed to legalized abortion but believes Roe v. Wade was decided correctly.

Second, people in positions of great authority are, and perhaps must be, capable of enormously high levels of self-delusion. In particular, to be a Supreme Court justice means to be a person who can both understand sophisticated legal arguments and manage to fail to understand that legal arguments in and of themselves cannot answer a question such as “should the health-care reform statute be held unconstitutional?” (The question of when and why courts should strike down statutes is ultimately a political and moral question, rather than a legal one.)

Third, although their number can perhaps be counted on the fingers of Mordecai Brown’s pitching hand, there are a few people in the American legal system who genuinely dislike judicial activism in and of itself, without regard to the results it generates in any particular case.

This view is reflected well in my colleague Robert Nagel’s thoroughly nonpartisan observation that “judges elevate their preferences to constitutional rights and then claim that profound moral beliefs held by others are inadequate to justify restrictions on the newly created rights. You see, rights cannot be abridged except for highly convincing reasons, and judges (enlightened by the arguments of litigators and law professors) will decide what is convincing.”

It is not quite true that complaints about “judicial activism” are always self-serving, hypocritical, and ultimately hollow. Still, should the conservative members of the Roberts Court eventually overturn health-care reform on constitutional grounds, that defense will be completely unavailable to them.

Paul Campos is a professor of law at the University of Colorado at Boulder.