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Why You Can’t Trust The Judiciary, In One Statistic

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"Why You Can’t Trust The Judiciary, In One Statistic"

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Antonin Scalia

CREDIT: AP Photo/David Tulis

It’s hardly a secret that the best predictor of how a judge will rule in a case seeking to undermine the Affordable Care Act is whether that judge was appointed by a Democratic president or by a Republican, but the Washington Times crunches the numbers and finds a particularly stark divide. “A review of substantive federal appellate opinions through August 1 shows that since 2011, only two of the 30 Democratic-appointed judges or justices to rule on the merits of a case decided against Obamacare. Among Republican nominees, just six of the 28 to rule backed Mr. Obama’s health law.” In total, “Democratic appointees ruled in favor of Obamacare more than 90 percent of the time, while Republican appointees ruled against it nearly 80 percent of the time.”

If anything, these numbers understate the partisan divide among judges. Though the Washington Times analysis counts two examples where a Democratic judge ruled against the Affordable Care Act, one of those two judges is Judge Frank Hull, a federal appellate judge who voted to strike down part of the law in 2011. Although Hull is technically a Clinton-appointee, she is a conservative appointed to the United States Courts of Appeals for the Eleventh Circuit as part of a compromise with Republican Sen. Orrin Hatch, the former chair of the Senate Judiciary Committee who blocked nominees he deemed too liberal. Among the remaining Democratic appointees, nearly 97 percent have rejected challenges to the Affordable Care Act.

Partisanship and “Judicial Philosophies”

The standard defense offered when judges divide along partisan lines is that they are voting their “judicial philosophies” rather than voting their politics. Republican Justice Antonin Scalia offered this defense of himself and his colleagues in an interview shortly after his Court upheld the bulk of the Affordable Care Act. “I don’t think any of my colleagues, on any cases, vote the way they do for political reasons,” Scalia claimed. Rather, “[t]hey vote the way they do because they have their — their own — their own judicial philosophy. And they may have been selected by the Democrats because they have . . . that particular philosophy or they may have been selected by the Republicans because they have that particular judicial philosophy.” Randy Barnett, a libertarian law professor and one of the lawyers who unsuccessfully challenged Obamacare before the Supreme Court, made a similar argument on Twitter in response to the Washington Times analysis of health care decisions.

Scalia’s own jurisprudence, however, undermines his suggestion that judges who vote against the Affordable Care Act are doing so as part of a consistent judicial philosophy. The core of the 2012 Supreme Court case challenging Obamacare was a claim that the law’s individual mandate — it’s requirement that most Americans either carry health insurance or pay higher income taxes — violates the Constitution. The individual mandate exists for a very specific purpose, however. One of the core provisions of the Affordable Care Act prohibits insurers from denying coverage to people with preexisting conditions. Yet, if sick people are allowed to join insurance plans as soon as they become sick, then they will drain all of the money out of health plans that they haven’t paid into, driving premiums up for everyone else and potentially rendering the plans economically nonviable. The individual mandate solves this problem by encouraging healthy people to purchase health insurance before they become sick. Without it, Obamacare’s protections for people with preexisting conditions cannot operate effectively.

One reason why this link between the individual mandate and the law’s insurance regulations matters is that, in 2005, Justice Scalia authored an opinion arguing that, when Congress enacts a complex regulatory scheme, it has sweeping power to ensure that this scheme works effectively. “[W]here Congress has the authority to enact a regulation of interstate commerce,” Scalia wrote in 2005, “‘it possesses every power needed to make that regulation effective.’” This 2005 opinion is directly at odds with Scalia’s later vote to strike down the individual mandate.

Nor can a conservative judicial philosophy explain a more recent decision by a federal court of appeals in D.C.. where two Republican judges voted to defund much of Obamacare on the exact same day that four Democrats voted to reject this attempt to gut much of the law.

Though the legal issues in this case are complex, they essentially boil down to a dispute over how federal laws should be read. Supporters of this attempt to defund the Affordable Care Act claim that one line of the law must be read to deny health care subsidies to Americans in much of the country, while the law’s defenders argue that judges must read the whole statute to determine its meaning — and that the full text of the law makes clear that Congress did not intend to give each state an easy tool it can use to sabotage Obamacare. Past Supreme Court decisions, for what it is worth, prefer the later approach. As recently as last June, the Court reaffirmed the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”

The author of that June opinion: Justice Antonin Scalia.

The claim that liberal judges and justices have a coherent political philosophy that explains their vote in health care cases is somewhat more defensible. In the early Twentieth Century, conservative justices embraced various legal doctrines that held many progressive laws seeking to improve labor conditions unconstitutional. Liberals responded to these extra-constitutional legal doctrines by arguing that the courts should get out of the business of censoring economic legislation — and they won. In 1938, the Supreme Court held that “regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” unless it is unsupported by any “rational basis within the knowledge and experience of the legislators.”

So this explains why the Court’s four Democrats voted to uphold the bulk of the Affordable Care Act — a law that regulates one-sixth of the economy certainly qualifies as “regulatory legislation affecting ordinary commercial transactions.” It’s also worth noting that the Court’s left-of-center bloc has, at times, upheld legislation that likely conflicted with their political views because striking down the legislation would run counter to their broader judicial philosophy. The 2005 case where Scalia bolstered the constitutional case for the Affordable Care Act was an attempt to narrow the federal ban on marijuana to allow some medical marijuana patients in California to have easier access to the drug. All four members of the Court’s liberal bloc rejected this attempt, because they determined that a total ban on marijuana is consistent with Congress’ broad power to ban products from the commercial marketplace.

Motivated Reasoning

Whatever the motivation of the Democratic justices in the health care case, or of the Court’s liberal bloc (some of whom were Republican appointees in 2005) when they decided the medical marijuana case, there is ample evidence showing that strong partisans of all political stripes allow their political views to trump their ability to engage in rational decision making. One study, for example, took brain scans of committed Democrats and Republicans while their brains were processing information that presented their party’s presidential candidate in a poor light. During these scans, the sections of the brain associated with reasoned thinking showed little activity. Instead,

the partisan’s brain actually uses a reward and punishment system to prevent them from changing their strongly held beliefs. Once a partisan is confronted with unwelcome facts about a favored candidate, the centers of their brain associated with emotional distress kick into gear, and those centers remain active until the brain finds away to rationalize away the unwanted information. When that happens, the distress centers of the brain turn off and the centers associated with positive feelings turn on. As [one of the researchers behind the study] later explained, these positive emotional centers “overlap substantially with those activated when drug addicts get their ‘fix.’”

Another study found that partisans are more likely to incorrectly analyze data if that data supports a conclusion that runs counter to their partisan political views. The psychological phenomenon that drives these studies is known as “motivated reasoning,” and it is so strong that it can even triumph over a partisan’s ability to solve math problems with a single, objectively correct answer.

This is why judges often cannot be trusted to decide cases where they have a strong partisan investment in the outcome of the case. When a partisan encounters an analytic problem that leads them to a conclusion at odds with their strongly held political views, their brains will literally punish them with emotional distress until they find a way to justify a different conclusion that is more in line with their partisan views. Worse, this process is largely subconscious. A partisan judge who mangles the law due to motivated reasoning will genuinely believe that they have reached the correct answer.

Ultimately, the problem of motivated reasoning indicts the legitimacy of the judiciary itself. The standard explanation for why the Supreme Court is completely insulated from accountability to the American people or the elected branches — the justices are not elected and they serve for life — is that such insulation is necessary to ensure that the justices neutrally apply the law even when doing so is unpopular. As Alexander Hamilton wrote in the Federalist Papers, the judiciary “is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches,” and “nothing can contribute so much to its firmness and independence as permanency in office.”

But if motivated reasoning drives judges and justices to place their partisan views above the law, at least in highly politically charged cases, then the case for giving these judges the power to decide these cases breaks down. The Constitution empowers the judiciary because we trust judges to do something more than vote their political preferences. If they are unable to set aside their partisan preferences whenever the subject of Obamacare comes up, then we are better off leaving those decisions to people who are actually accountable to the electorate.

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