Will Judicial Partisanship Impact Healthcare’s Constitutionality?

March 23, 2011 in News
The four federal district judges who have ruled thus far on the constitutionality of the Obama health care law were split along party lines—with two Democratic appointees upholding the law and two Republican appointees declaring it unconstitutional. The Florida decision striking down the law will be appealed to the Eleventh Circuit, which is currently composed of 9 Republican appointees and 7 Democratic appointees. Two Virginia decisions, which came out opposite ways, will be reviewed by the Fourth Circuit – a 17-judge court with 9 Democratic appointees. And the Michigan decision upholding the law will proceed to the Sixth Circuit, which has 19 Republican appointees and 10 Democratic appointees. But all these numbers include senior circuit judges – who occasionally sit on 3-judge panels and almost never sit en banc—thus making any prediction based on party lines sheer conjecture.

The picture in the Supreme Court is equally murky, despite its current makeup of 5 Republican appointees and 4 Democratic appointees. In a recent editorial in the New York Times, Professor Laurence Tribe opined that the constitutionality of the health care law “is not one of those novel, one-off issues, like the outcome of the 2000 presidential election,” but instead turns on the Court’s historically broad interpretation of the Commerce Clause. In Professor Tribe’s view, Justices Scalia and Kennedy are likely to back an expansive view of the Commerce Clause to uphold the controversial mandatory insurance provision in the law, and only Justice Thomas can be counted as a likely vote against the law. If Professor Tribe is right, the healthcare law may garner enough votes to pass constitutional muster – even if Justice Kagen recuses herself based on her previous role in the Obama administration. But we’re likely not to know until the 2011-12 term, at the earliest.