Monday, January 31, 2011

Of "Judicial Activism," Ideology, and the Affordable Health Care Act

Four judges have now assessed the constitutionality of the Affordable Health Care Act's insurance mandate. Two Clinton appointees have upheld the Act. One Reagan appointee and one Bush appointee have ruled that it violates the constitution. Obviously, two of the judges are misinterpreting, perhaps intentionally, the constitution, right? It must be those pesky "judicial activists." But are they the Clinton appointees or the Republican appointees?

My guess is that most readers, including law professors, will know the answer to that question with absolute certainty and sincerity. But their answers will differ. The numbers supporting one side or the other may not be equal, but they will be close enough to raise a serious question about the inherently political nature of constitutional judicial review.

Notwithstanding the claims of Justice Scalia, the constitution itself is not a sum certain, but is amenable to multiple, legitimate, but mutually exclusive, interpretations. Ambiguities inherent to the constitutional document itself provide the opportunity for politicized judicial review, and allow for both sides to claim that judges on the other side are engaged in "judicial activism."

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