The senior judge on the panel is Judge Harry Edwards, a Carter appointee who is unlikely to throw centuries of law under the bus. He is joined, however, by Judges Laurence Silberman and Brett Kavanaugh, both of whom have a long record of conservative activism.
A former banking executive and official in the Nixon, Ford and Reagan Administrations, Silberman is a close personal friend of Justice Thomas and encouraged a reluctant Thomas to accept his first appointment to the federal bench. Although Silberman’s position as a judge prevented him from being the public face of support for Thomas’ confirmation to the Supreme Court, Silberman worked actively behind the scenes — including with opposition researchers tasked with undermining Thomas’ opponents. Silberman reportedly speculated that Professor Anita Hill accused Thomas of sexual harassment because she was a lesbian “acting out,” and he insisted that Thomas would have never asked Hill out because Hill “had bad breath.”
Silberman overturned Oliver North’s felony conviction in the wake of the Iran-Contra scandal, but his most significant opinion is probably Parker v. District of Columbia, which struck down DC’s handgun law on Second Amendment grounds. Like the Affordable Care Act, the DC gun law was supported by many years of Supreme Court precedent. In its 1939 decision in Miller v. United States, the Court held that the Second Amendment only protects the right to keep and bear arms for the purpose of serving in a state militia–lawmakers were free to regulate firearms used for non-militia purposes. Miller was binding Supreme Court precedent at the time Silberman decided the Parker case, so he should have upheld the DC law.
Instead, Silberman took a gamble that the Supreme Court would overrule Miller — and he was right. DC appealed Silberman’s decision, and a 5-4 Supreme Court affirmed Silberman in its landmark DC v. Heller decision. So Silberman has already flouted precedent once in a successful bid to get the Roberts Court to change longstanding law. It is easy to see him trying to spin the wheel again on the Affordable Care Act.
Kavanaugh’s partisan credentials make Silberman look like Ted Kennedy. Kavanaugh served as an Associate Counsel under Clinton inquisitor Ken Starr, and was a principal author of the Starr Report to Congress on the Monica Lewinsky affair. Kavanaugh then served in the Bush White House, where he worked on President Bush’s effort to fill the federal bench with conservative judges. At one point, Kavanaugh also advised the Bush Administration on the likelihood that the Supreme Court would allow it to deny detainees access to lawyers — although he later testified in his confirmation hearing that “I was not involved and am not involved in the questions about the rules governing detention of combatants and so I do not have any involvement in that.”
As a judge, Kavanaugh is a reliably conservative vote — especially in detainee treatment cases. He also recently penned a dissent claiming that Exxon could not be held accountable when it hired people who engaged in torture and other crimes against humanity in Indonesia because, as a corporation, Exxon is immune from a law allowing private parties to be sued for some of the most atrocious violations of international law.
So the Affordable Care Act is in for a rough ride tomorrow, but there are at least two silver linings for the law. The first is the fact that the panel recently requested additional briefing on whether the law counts as a tax and therefore must be upheld under Congress’ power to levy taxes. To date, two of the three courts of appeals hearing ACA cases have issued such letters, and in each case the request for additional briefing telegraphed how a key member of the panel intended to reject the challenge to the law.
The second silver lining is the possibility of a surprise decision. A 2-1 decision with Silberman and Kavanaugh striking down the Affordable Care Act would merely confirm what anyone familiar with these two judges expects to happen. If just one of them voted to uphold the law, however, it would be extremely unlikely that one of the Supreme Court’s conservatives won’t do the same.