Sooner or later, like a broken clock that’s right twice a day, our 45th and very broken and prevaricating president manages to tell the truth. So it was last month, when Donald Trump and Supreme Court Chief Justice John Roberts got into a war of words over whether judges adhere to the ideological views of the presidents who nominate them.
The heated exchange erupted after federal District Judge Jon Tigar, an Obama appointee who sits in San Francisco, issued a temporary restraining order that blocked Trump’s controversial plan to force undocumented immigrants to file applications for political asylum before entering the country. Current policy, consistent with international human rights law, permits asylees to submit applications after crossing the border.
Trump blasted Tigar, both on Twitter and in an impromptu televised interview, as an “Obama judge.” In response, Roberts released an unusual public rebuke, insisting: “We do not have Obama judges, Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. An independent judiciary is something we should all be thankful for.”
Although we may want to side with Roberts, it is widely recognized by constitutional scholars that ideology is a primary factor presidents consider in the judicial selection process. And while some judges, including Supreme Court justices, grow more liberal with time, most don’t.
As noted in an academic analysis of the Supreme Court posted this month on the Empirical SCOTUS website, there are undeniable differences in the voting records of judges appointed by Democratic and Republican presidents. Of course, you don’t really need to plow through a wonkish study to know that. Many of the Supreme Court’s most high-profile decisions are resolved on 5-4 votes along clearly partisan lines. Consider, among others, District of Columbia v. Heller on the 2nd Amendment; Citizens United v. FEC on campaign finance, and Shelby County v. Holder on voting rights, in which the majority opinion was authored by none other than Roberts himself.
While judicial biases exist on all sides of the political spectrum, most judges understand they don’t have completely unfettered discretion in crafting their rulings.
Anyone who has any lingering doubts that Trump got it right in his tête-à-tête with Roberts should take a close look at U.S. District Judge Reed O’Connor’s Dec. 14 decision in the case of Texas v. United States. In it, Reed, an appointee of George W. Bush who holds court in Fort Worth, Texas, declared the entire Affordable Care Act (ACA) unconstitutional.
While judicial biases exist on all sides of the political spectrum, most judges understand they don’t have completely unfettered discretion in crafting their rulings. Even when overturning precedent, the most activist among them recognize the necessity of offering plausible rationales and at least appearing to work within the boundaries of established legal reasoning.
Not so, apparently, with O’Connor. Since his appointment in 2007, the 53-year-old judge has operated as a GOP zealot in black robes. A frequent speaker at Federalist Society events, O’Connor has displayed a particular animus toward Obama administration initiatives on the bench.
In 2016, he enjoined Obama’s executive order requiring public school districts to allow transgender students to use bathrooms based on their gender identity. In another 2016 case, he invoked the Religious Freedom Restoration Act to block a part of the ACA that outlawed discrimination against transgender people in the provision of health care. This year, he held that portions of the designed to protect Native American children from unwarranted removal from their families by state and federal authorities were unconstitutional.
O’Connor’s most recent ruling invalidating the entirety of Obamacare, however, is his masterpiece.
The case was filed by a coalition of 20 Republican governors and state attorneys general. Together, they advanced a bizarre argument, contending that since Congress in 2017 repealed the income-tax penalties associated with the ACA’s individual mandate and because the Supreme Court in 2012had upheld the mandate as a valid exercise of Congress’ taxation powers, the mandate was now unconstitutional. Because the mandate is now unconstitutional, they continued, the whole act is a nullity because of the mandate’s central importance to the act.
Instead of recognizing the circularity and downright silliness of the coalition’s position, O’Connor bought it. Not only did he strike down the mandate, but he also held the mandate was inseverable from the ACA’s other provisions, including Medicaid expansion and the act’s preexisting condition protections.
Writing in The Washington Post, University of Michigan Law School professor Nicholas Bagley explained that although Congress zeroed out the income tax penalty imposed on people who refuse to buy health insurance, the Republican majority failed to muster the filibuster-proof majority needed to repeal the mandate itself. The mandate remains on the books, even though, starting in January, it will no longer be enforced by a tax penalty.
In addition, Bagley explained that even if the mandate somehow magically became unconstitutional despite the Supreme Court’s binding 2012 decision to the contrary, the mandate is clearly severable from the ACA’s remaining provisions.
Trump, of course, viewed O’Connor’s ruling differently, tweeting in its aftermath: “Wow, but not surprisingly, ObamaCare was just ruled UNCONSTITUTIONAL by a highly respected judge in Texas. Great news for America!”
In this respect, Trump is dead wrong. If O’Connor’s decision is upheld on appeal, millions of Americans, especially “near seniors” (age 50-64), will lose their health insurance. Many will suffer illnesses that will go undiagnosed and untreated. Many will die.
Health care was a major issue in the midterm elections and will loom even larger in 2020. If Obamacare is jettisoned, the GOP will likely be blamed. A critical mass of Americans will hopefully clamor for the ACA’s restoration, or better still, for a public option or the institution of Medicare for all Americans.
In time, however, even Trump may come to regret O’Connor’s decision, reminded of the old proverb: “Be careful what you wish for, lest it come true.”