The United States Court of Appeals for the Sixth Circuit announced yesterday that Judges Boyce F. Martin, Jr., Jeffrey S. Sutton, and James L. Graham will hear a conservative law firm’s appeal challenging the landmark Affordable Care Act. As numerous commentators have noted, the outcome of these cases has so-far been determined more by the partisan affiliation of the judges hearing the case than by the Constitution and precedent, which unambiguously establishes that the ACA is constitutional. Sadly, Judge Sutton’s presence on this panel is likely to enhance the perception that federal judges are placing politics before the law.
In 2008, just weeks before the presidential election, the Ohio Republican Party sued the state seeking to prevent as many as 200,000 registered voters from having their votes counted. Judge Sutton wrote an opinion that siding with the state GOP.
Three days later, the Supreme Court unanimously reversed Sutton in a rare two-page order. That very brief order rested largely on a 2001 decision called Alexander v. Sandoval — and the attorney who successfully convinced the Supreme Court to decide Sandoval the way it did was none other than Jeffrey Sutton.
Indeed, before Sutton became a judge, Sutton was one of the nation’s leading advocates for conservative states-rights positions and for cutting off ordinary Americans’ access to courts. Sutton devoted much of his career to preventing people with disabilities, religious minorities and even children who are illegally deprived of Medicaid coverage from holding states accountable in federal court. Sutton also served as an officer in the conservative Federalist Society’s Federalism and Separation of Powers practice group.
Yet when the State of Ohio claimed the right to conduct its own elections, Sutton not only abandoned his commitment to states-rights in order to side with the Ohio Republican Party, he defied a Supreme Court decision that he himself won before the Supreme Court. It is simply unimaginable that Sutton was unaware of the Sandoval decision when he chose to ignore it in the Ohio GOP’s lawsuit.
Hopefully, Sutton will show more loyalty to the law and less to his political party when he hears the upcoming challenge to the Affordable Care Act. The federal judiciary’s legitimacy depends on judges who follow the law even when their own personal views or political interests conflict with it, and that legitimacy cannot afford another blow like the one Sutton dealt in the Ohio Republican Party’s case.