Judge Sutton, ObamaCare, and Judicial Restraint

Liberal commenters have showered hosannas all over conservative 6th Circuit Judge Jeffrey Sutton’s opinion yesterday upholding the constitutionality of the Patient Protection and Affordable Care Act’s health insurance mandate. And why wouldn’t they? Not only is Sutton the first Republican-appointed federal judge to rule in favor of ObamaCare (thanks a bunch, George W. Bush!), he’s a former clerk to Justice Antonin Scalia and a respected figure in Federalist Society circles. He’s precisely the sort of bipartisan cover that each side in the debate has been waiting for.

But Sutton’s new liberal fans might want to contemplate his entire opinion, not just the portion that discusses whether Congress has exceeded its authority under the Commerce Clause by unlawfully regulating inactivity. For instance, take a peek at Sutton’s rousing conclusion:

No debate in the forty years after the country’s birth stirred the people more than the conflict between the federalists and anti-federalists over the role of the National Government in relation to the States.  And no issue was more bound up in that debate than the wisdom of creating a national bank.  In upholding the constitutionality of a second national bank, not a foregone conclusion, the Supreme Court erred on the side of allowing the political branches to resolve the conflict.  Right or wrong, that decision presented the challengers with a short-term loss (by upholding the bank) and set the platform for a potential long-term victory (by allowing them to argue that Congress should not make the same mistake again).  There was no third national bank....

Today’s debate about the individual mandate is just as stirring, no less essential to the appropriate role of the National Government and no less capable of political resolution.  Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.

That’s the classic case for judicial restraint. If you don’t like the law, head to the ballot box, not to the courthouse. But how many ObamaCare supporters want to apply that standard across the board? In Lawrence v. Texas, for example, the Supreme Court entered the political thicket of gay rights and struck down a popularly-enacted state law banning sodomy. Judicial restraint demanded the opposite result. My guess is that many of the folks currently celebrating Sutton’s opinion would not retroactively apply his reasoning to Lawrence.

Here’s another one to think on: Boumediene v. Bush. In that case, the Supreme Court nullified part of the popularly-enacted Military Commissions Act of 2006 in order to extend habeas corpus rights to prisoners held at Guantanamo Bay. Justice Stephen Breyer, who generally favors judicial deference to the political branches, admitted in his recent book Making Our Democracy Work that, “One cannot characterize Boumediene as a case that followed Congressional directions or implemented Congress’s broader purposes.” So judicial restraint in Boumediene meant deferring to Congress and upholding the noxious law.

In other words, ObamaCare supporters shouldn’t be surprised when Sutton’s eloquent ode to judicial deference comes back to haunt them in the battle over a law they don't support.

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  • ||

    With that kind of reasoning, who needs the Supreme Court in the first place?

  • kinnath||

    The primary purpose of the Supreme Court is to strike down laws that do not comply with the constitution. They are the safety valve in the system for those times when the majority tramples the rights of the minority.

  • Mr. FIFY||

    So... why didn't they do their job properly?

  • kinnath||

    That is the question.

  • kinnath||

    The basic human emotion is to strike down "bad" laws and leave "good" laws alone regardless of their actual consititionality. The definition of "bad" and "good" depends on the person's overall philosophy of life.

  • ||

    They DID do their job properly. Making you stupid Christ-fags purchase a product is kosher with the Constitution.

  • sasob||

    The primary purpose of the Supreme Court is to strike down laws that do not comply with the constitution.

    No, it's not - or, at least, it wasn't until Chief Justice John Marshall decided to pull that whole judicial review thingy out of his ass in Marbury vs Madison.

  • Fist of Etiquette||

    The people rely on the judicial branch to stop the other two from ignoring the Bill of Rights, even when they do so to the cheers of a majority of voters. If judges refuse to do that, then what use are they in these matters?

  • squishua||

    In other words, ObamaCare supporters shouldn’t be surprised when Sutton’s eloquent ode to judicial deference comes back to haunt them in the battle over a law they don't support


    Not a problem, for at that point they will excoriate him for "legislating from teh bench!!11!"

  • ||

    It's the TEAM RED TEAM BLUE way! Yin and Yang; two sides of the same coin; etc. They each behave the exact same way when in power and when out of power. Isn't it great?

  • ||

    ... whenever someone tells me the parties are very similar, I always think of things like this as real exceptions to that. Like, when we moonbats lose something, there's gnashing of teeth, yelling about the Kochs, America's in trouble, etc. But what you rarely (don't want to say "Never") see is this whole: "Bwah ha! By us losing, we'll be more powerful than those liberals can ever imagine!" thing. You saw this at almost every wingnut blog after Obama's election, and literally (going back) to every single thing that happens that left wants. Is this just a defense mechanism? Or...?

  • The Derider||

    Remember Karl Rove's "Permanent Republican majority?"

    Are you a hypocrite or a moron?

  • omg||

    I think I heard something similar to what you describe come from liberalland after DC v Heller.

  • ||

    Judicial restraint or judicial activism, either way, it just sucks when the judges roll over on statism vs. freedom and the constitution was most definitely a freedom over statism document when it came to the federal government.

  • tarran||

    was most definitely a freedom over statism document when it came to the federal government.

    I disagree. The U.S. Constitution reduced freedom; it enacted by politicians as a reaction to the inability/unwillingness of state militias to force people to pay unpopular taxes required to pay the debt of the War of Independence.

    Which is why George Washington led the U.S. army in an invasion of Pennsylvania to force the local citizens to pay the outrageous taxes his administration was levying.

    It's a shame that Shay's rebellion didn't go the other way and defeat the mercenary army levied by wealthy citizens to prop up the MA government when its own troops refused to fire upon their fellow citizens (and yes, when it comes to totalitarianism in the U.S. Massachusetts leads the way). I suspect we would live in a much freer world had the U.S. been a fractious group of independent states rather than ruled by an entity that can commander a depressingly large amount of wealth with witch to impose its will upon the world.

  • Mnemone Jones||

    I suspect we would live in a much freer world had the U.S. been a fractious group of independent states rather than ruled by an entity that can commander a depressingly large amount of wealth with witch to impose its will upon the world.

    I wonder what Europe and Asia would look like. Hm.

  • tarran||

    Without U.S. involvement in WW I, there would have been no Hitler, and the Soviets would probably have collapsed in the 1940's.

    Without the U.S. attack on Japan to force open its markets, followed by U.S. attempts to undermine the pacifistic political parties in the 20's & oil embargo in the 1930's, there would have been no Pacific War.

    It's possible that some megalomaniac would have gotten to power and had the weapons to cause much mischief in this Turtledovian alternate history. I could well be wrong. Perhaps it would have been the British escalating conflicts and making things worse. Who knows?

  • Cytotoxic||

    Bullshit. Japan's imperialistic impulses flowed from internal culture. Further, there is little reason to suspect the world would be better indeed America can be thanked for keeping shipping lanes open and warding off communism.

  • tarran||

    Bullshit. Japan's imperialistic impulses flowed from internal culture.

    You're seriously going to call a kingdom that ruthlessly pursued isolationism to be culturally imperialistic? Seriously?

    The Japanese came to be imperialistic because the government came to be dominated by people whose analysis of European and U.S. actions in the pacific led them to conclude that either Japan became an imperial power or it would become a plundered colony of other imperial powers as was happening to China.

    Yes, Japanese culture sucks, and is not very humane. But they launched themselves into brutal wars of conquest primarily out of desire to not be subjugated.

    As to the commies, I should point out that absent U.S. involvement in WW I the Germans might never have sent Lenin to overthrow the Russian czar. The threat of U.S. involvement coming in on the side of England was an awful big driver of Germany's strategy, and led them to do some very desperate and ultimately counterproductive things.

    However, that's neither here nor there. Absent U.S. involvement, the exhausted combatants would eventually have given up, there would never have been a Treaty of Versailles, and Hitler would probably died an obscure war hero who had been a mediocre painter. Hell, he might have even ended up in the U.S. if he decided to take possession of some land he inherited in Colorado.

    That is not to say everything would have been sweetness and light; the British, French, Germans, Italians, Russians, Belgians all did some pretty horrific things, and a balkanized U.S. would in no way have precluded that.

    But the U.S. ability to produce weapons and its huge population and its missionary zeal to bring enlightenment to the unwashed masses at the point of a bayonet did tend to escalate things a great deal.

  • Cytotoxic||

    Just how big a loss is this? It's just one battle right?

  • The Derider||

    In Lawrence v. Texas, for example, the Supreme Court entered the political thicket of gay rights and struck down a popularly-enacted state law banning sodomy. Judicial restraint demanded the opposite result. My guess is that many of the folks currently celebrating Sutton’s opinion would not retroactively apply his reasoning to Lawrence.

    The reasoning in Lawrence was based on the equal protection clause of the 14th amendment. This decision wasn't. Apples and Oranges.

  • tarran||

    Hmm, and when you can find an enumerated right for Congress to legislate intrastate insurance markets, you might have your apples & oranges argument.

  • The Derider||

    I'm pretty sure the 6th court did that for me.

  • tarran||

    Nope, they say they did, but they didn't.

    Of course, it's nothing new. Adams signed the Alien and Sedition Acts which were simmilarly not an enumerated power of Congress to legislate, and yet the courts enforced the laws.

    The ability of smart people trained in rhetoric to rationalize red into blue is pretty impressive.

  • The Derider||

    Oh ok I'll listen to internet posting superstar tarran's warrentless argument instead of the well reasoned conclusion from the court.

  • Rock Action ||

    Warrantless. Learn to fucking spell. It's also a horrible use of the word, in my opinion, and by Merriam Webster's official definition, too. Well-reasoned conclusion takes a hyphen. Learn how to use one.

  • Rock Action||

    No, it wasn't. At all. You should shut the eff up when you don't know what you're talking about. PWND!!!1!1!!

  • The Derider||

    Here comes the moron parade.

  • Rock Action ||

    It was decided upon 14th Amendment substantive due process grounds, not the equal protection clause. O'Connor wrote a concurrence about EP, which, IIRC, was explicitly rejected by the majority. You don't know what the fuck you're talking about. PWND!!!! PWNY PWNY PWND!!!

  • Rock Action ||

    Just so I don't have to deal with your whimpering-ass justifications as to why you think you're right (you're not, dude), here are some links. Teach yourself some jurisprudential history.

    http://www.law.cornell.edu/sup.....02.ZS.html

    Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause

    http://en.wikipedia.org/wiki/Lawrence_v._Texas

    The Supreme Court voted 6–3 to strike down the Texas law, with five of the justices holding that it violated due process guarantees, and a sixth justice, Sandra Day O'Connor, found that it violated equal protection guarantees. The majority opinion, which overrules Bowers v. Hardwick, covers similar laws in 12 other states. Justice Anthony Kennedy wrote the majority opinion; Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer joined
  • The Derider||

    Note that this makes absolutely no difference to the underlying argument.

  • Rock Action ||

    Fucking troll. You think you got the answer "four" correct because you think that's what the answer key says. But you clearly don't know what the fucking equation was, which is stupid enough. But, wait, you get dumber. "Four" wasn't the answer, because you didn't get:

    a) the validity of the broader point about judicial deference to legislative bodies, regardless of doctrine. This is especially up for debate in conservative circles, with advocates of judicial deference like Robert Bork butting up against more libertarian conservatives like Randy Barnett. But you wouldn't know that, because you obviously know shit about i)law and ii)the right.

    nor were you

    b) able to indentify the imperfect, yet valid analogy about activism when it comes to adjudicating cases under the SDP and Commerce Clause doctrines, where the laws would be judged constitutional by whether they passed a rational-basis test. This is where the metaphorical "equation" I mentioned becomes important -- EP tests range from strict scrutiny tests to intermediate scrutiny to rational-basis tests, depending on the category of plaintiff (the "suspect class") harmed by the action. Sexual orientation EP scrutiny has yet to be determined. So your not knowing shit about that which you asserted hurt your ability to get the analogy you criticized. What is it about the incompetent's assessment of himself?

    In conclusion, congrats. Your last post to me -- instead of saying, "yeah, I'll look that up. I'm dead wrong," proves you're still a bad faith troll WHO KEEPS ON TALKING EVEN WHEN HE DOESN'T KNOW SHIT.

    So, fuck you, asshole. This is why nobody takes you seriously. You claim you want debate, but then you don't know shit, and you duck in bad faith behind bullshit escape hatches. Have fun whacking off here.

  • non||

    Most Americans want the courts to support their political agenda. They neither understand nor care about the legal justification. The courts are increasingly happy to oblige. Political power is ascendant, and the rule of law is rarely an impediment.

  • Nightscoft Squire Maldunne||

    Sort of... more like apples and eggplants. I see your point, but this is not really an issue of equal protection, but of interstate commerce or states vs feds.

  • ||

    Liberal jurists have argued for a very stunted view of what is the proper area for judicial review. That's where you get the levels of judicial scrutiny from. Rational review for almost everything, strict scrutiny for "fundamental rights" (most of which have nothing ostensibly to do with economic rights - though even that is not the case - the right to use a condom is freighted with all manner of economic issues - so the courts have done their level best to ignore those sorts of complications, even though they are staring them in the face) and rational review for everything else (except a few limited cases where intermediate scrutiny is required). Over the long term it is a fundamentally unworkable system that is bound to fall apart, particularly as other notions like the rule of law break down under the weight of so much government involvement in the day to day lives of the populace.

  • Jamie||

    Congress never had any power to legislate on economic matters within states or among them. Article I, Section 9 took the power away from taxing for the regulation of commerce with the states and Marshall in Gibbons confirmed the limitation on Congress. See:

    http://federalistblog.us/2011/.....merce.html

  • Tony||

    My guess is that many of the folks currently celebrating Sutton’s opinion would not retroactively apply his reasoning to Lawrence.

    Yeah it's OK to be inconsistent on judicial restraint. The relevant comparison is that both decisions increased freedom.

  • ||

    As long as it gives the state more power over stupid Christ-fags, I'm cool with it.

  • ||

    There was no third national bank.

    Shhh. Don't tell Judge Sutton about the Federal Reserve System.

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