Nan Aron in The Huffington Post: Supreme Court to women: Father knows best

From AFJ President Nan Aron's latest column in The Huffington Post:

This is a very bad time for American women in the Supreme Court.

Three big cases were decided right at the end of its term that will profoundly affect women’s lives, subject them to conditions that are never applied to men, and damage their ability to control their own lives and health.

In McCullen v. Coakley, the Court in a “faux-nanimous” decision in which the four moderate-liberals clearly played defense, found that a 35-foot buffer zone around the entrance to abortion clinics in Massachusetts was a violation of the First Amendment. The Commonwealth had established the zones in reaction to the brutal murder of two people at a Boston clinic in 1994 and the endless harassment of women and their families attempting to enter reproductive health clinics.

But Chief Justice John Roberts, writing for the Court, swept aside reality, superimposed his own view of what happens outside clinics, and somehow found that so-called “sidewalk counselors” need to be protected more than the people who work at or make use of the clinics.

Read the full column here

AFJ releases new report on the Supreme Court's 2011-12 term

Photo: Mike Sheridan

The 2011-12 U.S. Supreme Court term will be best remembered for the Court’s landmark ruling on the Patient Protection and Affordable Care Act (“ACA”), in which it upheld the constitutionality of the Act but opened the door to placing future limits on Congress’ ability to regulate interstate commerce and to impose conditions on federal grants to the states. That decision, however, was far from the only ruling of major significance this term. The Court issued a number of important decisions that reflect its continuing bias in favor of corporate interests and against the rights of everyday Americans, demonstrating that Chief Justice John Roberts’ One-Percent Court was once again open for business.

Click here to download the full 2011-12 End of Term report.

Contraceptive coverage facing challenges in the courts

Yesterday an important piece of the Affordable Care Act comes into effect: the contraceptive coverage and preventative health care for women provision.  Among other services, this preventive services provision requires new insurance plans to provide all FDA-approved forms of birth control to women with no co-pay or deductible.  By 2014, it is expected that 90% of private health care plans will come under the reach of this provision, and that eventually it will apply to all insurance plans. This is a great step forward for women’s health; unfortunately, it is already being challenged in the courts.

The provision is under legal attack by some who are pushing a skewed interpretation of the First Amendment’s “free exercise” clause.  They claim that their religious beliefs are infringed by the requirement that they offer insurance plans to their employees covering the full range of preventative health service, including no-cost contraception.  Expressly religious organizations like churches, synagogues, and mosques are already exempt from the provision.  Religiously affiliated organizations--for instance, charities, colleges and hospitals with ties to a religious institution, even though they operate independently--have been exempted for a year while the administration works with them on a compromise that will still allow employees to access insurance with full preventative services while respecting the organization’s affiliations.  Nonetheless, legal challenges from some religious employers are being brought to overturn the provision on the grounds that it violates the organizations’ freedom of religion.

U.S. District Judge James Boasberg dismissed a suit brought by Belmont Abbey College, a Catholic college in North Carolina, holding that the school had not yet suffered any harm since they were exempted from the requirement for a year and the government may come up with a compromise acceptable to them. Another suit brought by seven states was dismissed on the grounds that they did not have standing, since the states failed to prove they would suffer actual harm by the enactment of the provision.  Wheaton College, an evangelical school in Illinois, has joined with the Catholic University of America in a suit against the provision. As in the other lawsuits, the schools say that their religious liberty is violated by having to provide employees with insurance plans that cover contraception.

Now, individuals who are employers are trying to claim that their personal religious beliefs should exempt them from having to provide insurance covering no-cost preventative services to their employees.  They assert that because they do not personally believe their religion allows them to use contraception, their exercise of religious freedom would be violated if they were required to provide a plan that allowed their employees to choose to take advantage of contraceptive coverage.

In Colorado, a family-owned air conditioning company filed a lawsuit against the contraception provision citing a violation of their personal religious freedom. On July 27th, Judge John L. Kane Jr. ruled that the government’s interest in health care was overridden by the Newland family’s claim to constitutional rights. Accordingly, Judge Kane imposed an injunction on the requirement that the Newlands’ business comply with the provision.  Judge Kane says he is going to address whether a non-religious company, in this case the HVAC company owned by the Newlands, can invoke the personal religion of the employers as a reason for not complying with this aspect of the ACA.

With the numerous challenges to this provision making their way through the federal courts, it is possible that one or more will wind up in the Supreme Court sooner or later.  At that point, the Court would be required to determine whether the First Amendment’s freedom of religion clause allows religiously affiliated institutions and individuals holding a personal belief to impose their faith on others by denying their employees the right to make personal decisions about their health care and well-being and access to comprehensive preventative health services.

Digging Deeper Into Ginsburg's Obamacare Opinion

Legal experts across the ideological spectrum have speculated on the dangers lurking in Chief Justice John Roberts' narrow opinion in upholding the Patient Protection and Affordable Care Act. While some disagree on the decision’s potential impact in future cases, it certainly suggests a basis for limiting Congress’ legislative authority. Justice Ruth Bader Ginsburg, in her strong defense of the constitutionality of the ACA under the Constitution's commerce clause, points out the dangers of Roberts’ approach.

Justice Ginsburg makes two important arguments for upholding the ACA under the commerce clause. First, legal precedent demands that the Court examine federal laws as practical solutions to national problems. In fact, Ginsburg’s concurrence cites Justice Anthony M. Kennedy – who voted against the ACA’s constitutionality – as writing that interstate commerce regulation should be viewed as a “practical” matter.

What this means is that the Court should have considered the ACA in light of the unique circumstances surrounding the nation’s health care crisis (rising cost of insurance and care, increasing number of uninsured Americans, etc.).

The opinion describes multiple states’ attempts to reform the health care industry. Ginsburg notes that most attempts at reform sought to guarantee coverage and access to insurance but failed because individuals would refuse to pay for insurance until they needed it the most, thus driving up insurance costs. Massachusetts, the first state to require that all citizens purchase health insurance, demonstrated that an individual mandate to buy health insurance could control those costs while providing near-universal coverage. Thus, members of Congress knew that any attempt at reform that preserved a major role for private insurers would need a requirement that all Americans purchase insurance.

Viewed as a “practical” matter, the individual mandate was a permissible and necessary exercise of Congress’ power to regulate commerce.

Second, the opinion written by Roberts (and expressed separately by Justices Kennedy, Scalia, Thomas, and Alito) places unreasonable restrictions on the commerce clause. Justice Ginsburg observes that the Supreme Court’s prior cases on the commerce clause expanded Congress’ powers in regulating activities that have an impact on interstate commerce. The Roberts opinion -- while admitting that activities that substantially affect interstate commerce are subject to the commerce clause -- created unfounded distinctions to limit those powers, arguing that the individual mandate sought to regulate economic inactivity, rather than activity in which people already engage. In reality, 60% of uninsured Americans will seek medical care in any given year, while 90% certainly will within five years, which indicates that even those who choose not to purchase insurance still are participants in the health-care market.

The Constitution, Ginsburg says, clearly affords Congress the authority to regulate a choice that has such a tangible impact on interstate commerce.

The commerce clause is the basis for many important pieces of legislation, such as the Civil Rights Act of 1964. If an uninsured citizen’s refusal to purchase medical insurance, leading to his later medical costs being shifted to others -- what Roberts and the dissent call “inactivity”-- may not be regulated under the commerce clause, what’s next? Will the Court decide that refusing to serve racial minorities at a restaurant or a hotel is also “inactivity”? What about refusing to sell contraceptives? Refusing to install wheelchair ramps? Or deciding not to participate in air-quality controls?

The Roberts Court may have made it a lot easier for opponents of these laws, and many others based on Congress’ power to regulate interstate commerce, to challenge them in court. If and when they do, legal experts and the justices themselves will certainly look to the opinions of Roberts, Kennedy, Scalia, Thomas, and Alito in Affordable Care Act case to determine the limits of congressional authority under the commerce clause.

The Broader Implications of the Court’s Healthcare Decision

Guest post by Professor Jedediah Purdy

Anyone who cares about fairness and good sense in social policy should count Thursday’s decision a victory – as most progressives are doing.

At the same time, we should be clear on this: The Supreme Court, on its own previously announced principles, had no business coming so close to invalidating the ACA.

Justice Roberts saved the constitutionality of a humane and centrist piece of social legislation.  Gutting it would have been radical, and it is striking that four justices would have done so.  Roberts also confirmed the view of the Constitution that made the attack on that law plausible.  That constitutional view is itself radical.  It affirms that the Court belongs at the heart of this issue, and guarantees its future role in similar controversies.

The fact that the Court came so close to gutting the law, and is being celebrated for withholding the knife, is a mark of how far the public has accepted aggressive judicial review of legislation that should not be constitutionally suspect.

Roberts accepted that Congress cannot require individuals to purchase health insurance under its power to regulate interstate commerce.  On his logic, if Congress had this power, it could also require people to buy cars or healthy food – the infamous broccoli example.

This may not matter much in practice.  Roberts upheld the requirement to purchase insurance under the separate Congressional power to tax by interpreting as taxation the fee for not purchasing health care.  The requirement to purchase is unusual policy design, and it is hard to imagine a similar law that could not be written to survive this combined commerce-and-taxation scrutiny.  The ruling on the Commerce power may be mainly symbolic.  For nearly 20 years, the Court’s conservatives have insisted on limits to the Commerce power while not doing much of consequence with those limits.  This opinion may be another of those rhetorical rulings.

That said, consider the way the Roberts opinion invites us to envision the world.  We are governed by politicians who want to force us into gym memberships and stuff broccoli in our faces.  The democratic process is not enough to protect us from such palpably unpopular laws.  We need the Supreme Court, wielding the Constitution, to protect our liberty to spend our money where we like, and not elsewhere.

To accept that these are urgent constitutional concerns, you need a very mistrustful sense of government.  You also need to see consumer liberty as a touchstone of American freedom.  For almost eighty years, constitutional law has assumed that Congress and state legislatures can be trusted to make economic judgments (better trusted than courts, anyway) under democratic scrutiny, and that individual economic freedom is not a constitutional liberty.  To be swayed by the Roberts opinion, you need to squint at the world in quite the opposite way.

The opinion’s rhetorical embrace of Tea Party constitutionalism should worry people who think complex problems like health care unavoidably require complex – and politically possible – solutions.  Congress adopted the individual mandate to deal the insurance companies into the political bargain, as conservative reformers had long urged.  If not for the saving thread of the taxing power, Roberts’s opinion would have left no solution to the health-care crisis that was both politically viable and constitutionally permitted.

The other major part of the Roberts opinion held that the federal government cannot withhold Medicaid funds from states as a punishment for the states’ failing to adopt the ACA’s expansion of Medicaid eligibility to 133% of the federal poverty line.  Roberts argued that the threat to withdraw Medicaid funding is “a gun to the head” that impermissibly coerces the states.  The idea is that, since the federal government cannot directly tell the states which laws to pass, giving them an offer they cannot afford to refuse amounts to dictating their Medicaid legislation.

For many decades, Congress has been influencing state legislation with fiscal carrots and sticks – offering money to fund policies it likes, withholding funds when states don’t pass desired laws.  If you ever wondered why every state sets the drinking age at 21, it’s because they would lose federal highway funds if they set it lower.  The Court has previously made a muted noises about possible limits to this use of Congress’s “spending power” to influence states, but this is the first time it has actually set a limit to that power.  This is a new, and potentially big, roadblock to federal policy-setting.  It intercedes the Court between Congress and the states and guarantees future challenges to spending legislation.

How much it will matter to the ACA’s anti-poverty effect depends on how many states will simply refuse to expand Medicaid, now that they know they can’t lose their existing funding for doing so.  The number may be large, given political hostility to the Act, which would mean more people without health coverage and more people crossing state lines in search of more generous care – part of the reason Congress aimed for uniformity.

Beyond the ACA, the Medicaid expansion ruling signals more aggressive federalism jurisprudence on a new front: limiting Congress’s use of fiscal power to shape uniform national policy.  Both here and in the Commerce Clause ruling, the Court encourages state resistance to federal lawmaking and, especially, litigation that advances new federalism arguments (like the commerce power decision) or presses the edge of old ones (like the spending power ruling).

It is revealing that Justice Scalia’s dissent for four conservatives does not really stake out a different view of the Constitution from Chief Justice Roberts’s.  It mostly exhorts the Chief Justice to apply his principles more exactingly, with less scruple for upholding the challenged law.  The constitutional premises of this opinion represent a conceptual and rhetorical victory for the right.  Time, and the November election, will tell how far that victory will go.

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Jedediah Purdy teaches in environmental, property, and constitutional law at Duke Law. He writes about how law interacts with and embodies ideas about freedom, social order, and the human relationship with the natural world, and how these ideas arise and change.

Supreme Court Upholds Obamacare, Narrows Medicaid Provision, and Begins the Dismantling of the New Deal State

The Supreme Court issued its long-awaited decision on the Affordable Care Act this morning, upholding the individual mandate and the remainder of the Act by a slim 5-4 majority, comprised of Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan.

The only partial defeat for the government was the Court’s holding that the Medicaid provision – which conditioned federal funds on states’ acceptance of expanded Medicaid coverage – must be interpreted narrowly such that states that refuse to expand their Medicaid programs lose federal funding only for the expansion, but not for the current, unexpanded versions of their programs. In the context of the health care law itself, this was unquestionably a positive ruling. Yet, in its reasoning, the decision must be understood as laying the groundwork for dismantling the New Deal state.

Supporters and opponents of the law waited
outside the Supreme Court building this morning

The opinion surprised Court watchers for two reasons. First, it was Roberts’ vote that mattered, as he and the four liberal-moderate justices voted to uphold the Act, while Kennedy dissented along with Scalia, Thomas, and Alito. (The most common predictions had Kennedy as the swing vote and Roberts joining Kennedy wherever he landed). Second, the majority opinion, written (as universally predicted) by the Chief Justice, upholds the mandate as a tax, based on Congress’ power to “tax and spend.” The four liberal justices joined him in that conclusion, which is thus the law of the land and the part of the opinion binding on the lower courts.

But significantly, while the liberal justices would have also upheld the mandate under the Commerce Clause, the Chief Justice insisted that the mandate was not a valid exercise of Congress’ power to regulate interstate commerce. The four conservative dissenters would have struck down not only the mandate but the entire Affordable Care Act as unconstitutional under the Commerce Clause, and accuses the majority of re-writing the statute by considering the mandate as a tax.

"Roberts gave the conservatives
a very big gift—a ticking time bomb
that could explode in cases down the line."

AFJ President Nan Aron

While the dissenters used some choice words, accusing the majority of “vast judicial overreaching,” the truth is that Roberts has now enshrined the heretofore non-existent distinction between economic “activity” and “non-activity” in the Court’s Commerce Clause jurisprudence. Writing only for himself in that portion of the opinion, his musings on the topic are not binding precedent. Nonetheless, by demonstrating a willingness to narrow Congress’ power to regulate interstate commerce, Roberts has invited further challenges to any number of federal laws and regulations.

An overwhelming majority of federal laws -- from the Civil Rights Act of 1964 to the Fair Labor Standards Act to the Clean Water Act -- were enacted based on Congress’ power to regulate interstate commerce. If our long-standing understanding of the Commerce Clause is upended, all of this is at risk, along with the vision of our society that we have held dear for half a century.

As Justice Ginsburg writes in her opinion, concurring in part and dissenting in part from Robert’s opinion, “[t]he Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.” She writes “[i]t is a reading that should not have staying power.” As we digest the Court’s decision in the weeks to come and look ahead to the very important cases coming before the Court during its next term, Justice Ginsburg’s warning should not be forgotten.

Nan Aron on MSNBC's Up with Chris Hayes

AFJ President Nan Aron appeared this morning on MSNBC's "Up with Chris Hayes" to discuss judicial nominations and the politicization of the Supreme Court. Watch below:

Visit msnbc.com for breaking news, world news, and news about the economy

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Visit msnbc.com for breaking news, world news, and news about the economy

What is at Stake in the Healthcare Cases

Guest post by Professor Timothy Jost

The challenge to the Affordable Care Act currently pending in the Supreme Court has been billed as the most important Supreme Court case of the decade. It is certainly that, and for more reasons than one.

The case before the Supreme Court involves four issues. The first, and most widely publicized, involves the constitutionality of the ACA’s requirement that most Americans be insured. The second question is whether the federal courts can hear a challenge to the “minimum coverage requirement” now or whether they must wait until a tax is imposed to enforce the requirement in 2015. Third, the Court will consider how much of the ACA must be thrown out if the minimum coverage requirement is held unconstitutional. And finally, the Court will review the claim of the twenty-six plaintiff states that the expansion of Medicaid to cover all adults with incomes below 133 percent of poverty is unconstitutional.

A finding that the minimum coverage requirement is unconstitutional — that Congress lacked authority to impose the requirement under its power to regulate interstate commerce or its power to tax and spend — would have a devastating effect politically. While, in fact, the argument that the requirement is unconstitutional finds support neither in the text of the Constitution nor in precedent, the Supreme Court has never considered a challenge to a law quite like this before and it is possible that the Court will find it unconstitutional. If, as is likely, the Court upholds all or most of the rest of the ACA, the practical effect of such a ruling would be serious, but not fatal. Millions more Americans would remain uninsured or pay higher prices for coverage, but the rest of the law could go into effect. Indeed, much of it is already in place.

But the political damage caused by such a ruling would be dramatic. Fox News would trumpet “Obamacare Held Unconstitutional,” and many Americans would believe it. Many states that are already dragging their feet at implementing the law would refuse to move forward. Communicating the precise and limited nature of the decision would prove immensely difficult.

A holding that the Medicaid expansions are unconstitutional, on the other hand, would not only cause messaging problems, but could fundamentally change the nature of our federal system. The basic claim of the states is that the ACA Medicaid provisions coerce them unconstitutionally to expand Medicaid coverage under the threat of losing federal support for their current program — their largest source of federal funding. Relying on dicta in a couple of Supreme Court cases, the states claim that this is unconstitutional.

An adverse holding on the Medicaid issue would leave millions of poor Americans uninsured. It would also, however, call into question dozens of federal programs in education, civil rights, transportation, and indeed national security that depend on conditional federal grants to the states. A ruling that the national government cannot require states to meet specific conditions to qualify for federal funding would end our federal system as we know it.

Whatever the Supreme Court decides, it is essential that Americans who support justice help their neighbors understand the true effect of the decision — the limited scope of a limited decision, or the dangerousness of broad ruling that could threaten not only the ACA, but also many other programs from which Americans benefit every day. This is the task that lies before us if the Court fails to do the right thing.

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Timothy S. Jost holds the Robert L. Willett Family Professorship of Law at the Washington and Lee University School of Law. He is a co-author of a casebook, Health Law, used widely throughout the United States in teaching health law, and of a treatise and hornbook by the same name. Jost is also the author of Health Care Coverage Determinations: An International Comparative Study; Disentitlement?The Threats Facing our Public Health Care Programs and a Rights-Based Response; and Readings in Comparative Health Law and Bioethics.

The Affordable Care Act Reaches the Supreme Court ... Again

The Thomas More Law Center – a tax-exempt, right-wing litigation group notable for its assaults on reproductive choice, LGBT rights, and Islam – has brought its challenge to the Patient Protection and Affordable Care Act to the Supreme Court. The Center was dealt a major blow last month when a Sixth Circuit Court of Appeals panel led by Judge Jeffrey Sutton, one of the most conservative George W. Bush appointees and a law clerk to Justices Lewis Powell and Antonin Scalia, upheld the health-care law by a 2-1 vote.

While the challenge is the first following an appellate court decision, the Supreme Court has already declined to hear prior direct appeals from lower court decisions upholding the Affordable Care Act.

The Sixth Circuit rejected the plaintiff’s argument that the Affordable Care Act “regulates inactivity,” and held that the law was within Congress’ Commerce Clause authority. Judge Sutton’s lead opinion is especially crucial, as he was known as “the leading advocate in private practice of the federalism revolution” before joining the federal bench, and might catch the attention of the prevailing conservative bloc on the Supreme Court. He was also the first Republican-appointed judge to rule in favor of the Affordable Care Act.

It is common practice for the Supreme Court to await divided circuit court decisions on a law before hearing a case. However, given the importance of the Affordable Care Act and the likelihood of further appellate court rulings in the coming weeks and months, the Court may take an early opportunity to resolve the important questions raised by the health-care litigation.

In Making Noise Over Kagan, Republicans Gloss Over More Serious Ethical Problems

On June 24, 49 Republican representatives sent a letter to the House Judiciary Committee Chairman Lamar Smith (R-TX), requesting an inquiry into Justice Elena Kagan’s ability to rule on the constitutionality of the Patient Protection and Affordable Care Act (PPACA). In response, Rep. Smith sent a letter to Attorney General Eric Holder, demanding documents pertaining to Justice Kagan’s role in the PPACA while she served as Solicitor General.

The partisan purpose of this inquiry is exceedingly transparent: House Republicans are trying to force Justice Elena Kagan’s recusal from an expected Supreme Court hearing of the challenges to the health-care law. This is politics at its worst and shows that the radical right is prepared to use any means necessary to rig the outcome in the Supreme Court.
This is not the first attempt that has been made by Republicans to smear Justice Kagan and prevent her from hearing the much-awaited case. CNSNews, a right-wing news outfit, tried the same tactic last year when it filed a Freedom of Information Act (FOIA) with the Solicitor General’s Office demanding documents relating to Kagan’s participation in the health care legislation.
A review of the documents released by the Solicitor General in response to this request makes one thing clear: there is no evidence to suggest that Justice Kagan had any personal participation in the health-care case that would warrant her recusal. In fact, Justice Kagan has distinguished herself as being particularly interested in avoiding the appearance of impropriety, having already recused herself from over 20 cases in her first term on the bench.

House Republicans may have another motivation for these partisan inquiries directed at Kagan: they divert attention from more serious ethical problems that face the Supreme Court.

First, though Justice Kagan is not one of them, there actually are justices on the Court who have demonstrated a stubborn reluctance to recuse themselves, even when their recusal was clearly warranted. In 2004, Justice Scalia insisted on participating in Cheney v. United States, despite having a close personal relationship with the defendant More recently, reports have highlighted the involvement of Justice Thomas' wife in conservative groups that have an active interest in high-profile cases -- including the very same challenge to the health-care law anticipated by the House Republicans in their letter to Rep. Smith.

By focusing on Justice Kagan in particular, Republicans are clearly attempting to draw attention away from the justices who actually do deserve closer scrutiny. At the very least, Republicans hope to establish a "both sides do it" media narrative to make other challenges appear every bit as partisan as their own.
More important, however, these inquiries into Justice Kagan’s behavior gloss over the fundamental, non-partisan problem: Supreme Court justices are not subject to the same ethical rules as all other federal judges and are allowed to follow (or ignore) the ethical rules as they see fit. Both Justices Scalia and Thomas have shown that the self-policing requirement is inadequate. Without fundamental change to the ethical rules that pertain to Supreme Court Justices, these inquiries – whether warranted or not – will continue.

Conservative Bush Appointee Upholds Affordable Care Act

Today, the Patient Protection and Affordable Care Act (PPACA) withstood is most critical test yet: a three-judge Sixth Circuit panel composed of two conservative, Republican-appointed judges and one Democratic-appointed judge.

Challenges to the health-care law have been brought by conservative state attorneys general, bringing the novel argument that PPACA "regulates inactivity" and is therefore unconstitutional.

In upholding PPACA, Judge Jeffrey Sutton – noted as one of the most conservative of George W. Bush’s appointees and “the leading advocate in private practice of the federalism revolution” – ruled that the Act was within the authority given to Congress by the Constitution's Commerce Clause (Article 1, Section 8, Clause 3).

Before joining the bench, Judge Sutton argued that the Americans with Disabilities Act, Violence Against Women Act, Age Discrimination in Employment Act, Clean Water Act, Religious Freedom Restoration Act, and other civil rights statutes went beyond federal power.

Despite his clear record of challenging Congressional authority, Judge Sutton today wrote:

Regulating how citizens pay for what they already receive (health care), never quite know when they will need, and in the case of severe illnesses or emergencies generally will not be able to afford, has few (if any) parallels in modern life. Not every intrusive law is an unconstitutionally intrusive law. And even the most powerful intuition about the meaning of the Constitution must be matched with a textual and enforceable theory of constitutional limits, and the activity/inactivity dichotomy does not work with respect to health insurance in many settings, if any of them.

Judge Sutton concluded by observing that:

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 [as early debates over the First National Bank]. 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.

A similar challenge to PPACA is currently before the Fourth Circuit.

The full Sixth Circuit opinion is available here. The ultimate fate of the Patient Protection and Affordable Care Act is expected to be decided by the Supreme Court, possibly as early as next term.

Recusal on the High Court Gets Attention As Health Care Law Works Its Way Through the Courts

Politico yesterday ran an article describing the efforts on both the left and the right to force the recusal of certain justices from the upcoming challenge to the Affordable Care Act, which could be heard in the Supreme Court as early as next October. Conservatives have argued that Justice Kagan should recuse herself because she was Solicitor General while the case was active within the Department of Justice, while progressives have argued that Justice Thomas should recuse due to fact that his wife earned over $700,000 lobbying against the passage of the law. Neither Justice has recused from the case and neither is likely to do so.

Legal ethicist Stephen Gillers predicted that whichever way the case comes out, the losing party is likely to attack the integrity of the decision on the basis that Justices Kagan or Thomas (depending on which side prevails) should have recused from the case.

Regardless of whether one agrees with these arguments, under the current system the only arbiter of the facts and legal issues raised by recusal motions is the accused justice, who may deny a motion without issuing a written explanation. Continuing to allow each individual justice to have the final and only say as to whether they might appear biased risks the continued erosion of public confidence in the integrity of the Court as an institution, and heightens fears that the Supreme Court has become inappropriately politicized.

That is one reason why Alliance for Justice is calling for reforms to the Court’s recusal process that would create more transparency and accountability around a justice’s decisions not to recuse from a case. The current procedure governing recusals should be modified to provide for some method of review of an individual justices’ decision not to recuse. Such a process would help ensure the recusal statute's "appearance of bias" standard is applied, thereby strengthening the ethics of the Court.

To learn more about ethics on the Supreme Court, and the reforms called for by Alliance for Justice, click here.

Tea Party Judge Strikes Down Affordable Care Act in Sweeping Decision

On Monday, Judge Roger Vinson, a Reagan appointee, struck down the Affordable Care Act. The New York Times today published an editorial condemning Judge Vinson’s decision to find the entire health care bill unconstitutional as "a breathtaking example of judicial activism and overreach." When judges strike down part of a law as unconstitutional, the traditional practice is to issue a ruling as narrowly as possible, leaving intact parts of the law that do not raise constitutional concerns. Yet with reasoning that the New York Times characterized as "stretched past the breaking point," Judge Vinson invalidated the entire law after finding that the individual mandate was unconstitutional.

In his ruling, Judge Vinson wrote that the law "has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed." Yet his broadly-constructed ruling struck down all 450 pieces.

In finding that the individual mandate was not severable from the rest of the Act, Judge Vinson’s reasoning used language nearly identical to that of an amicus brief submitted by the Family Research Council, an organization the Southern Poverty Law Center has classified as a hate group because of its defamation of gays and lesbians. Vinson's opinion also gave a nod to the conservative Tea Party movement, writing that "a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place."

Of the challenges to the Affordable Care Act to be decided on the merits so far, the outcomes have broken along partisan lines, with two Republican-appointed judges finding the law unconstitutional and two Democrat-appointed judges upholding it.

This case demonstrates what Alliance for Justice has long espoused: progressives need to care about who sits on the federal bench. Ideologically-driven judges like Vinson have proven themselves all too willing to dismantle hard-fought pieces of legislation like the Affordable Care Act in order to advance a political agenda from the bench. We need fair and independent judges who will not twist the law to advance a right-wing agenda and favor powerful interests over everyday Americans.

There are currently 48 judicial nominees pending before the Senate and over 100 judicial vacancies. But obstructionist Republicans in the Senate have been bent on preventing President Obama from filling these vacancies, even in those courts facing "judicial emergencies." Judge Vinson’s decision is a stark reminder that the fate of the President's agenda, as well as many other important laws and policies, will be decided in the courts. It is time for those who care about health care, civil liberties, consumer protection, worker rights, and other issues that go to the core of our democracy, to get serious about the courts and work to ensure that President Obama's judicial nominees are confirmed.