In an article about Justice Stephen Breyer this fall, I suggested that the coming battle over the constitutionality of health-care reform would be a fitting capstone to his career. Breyer is a great believer in the ability of the government to solve problems; he believes, too, that judges should give the elected branches of government a good deal of leeway to pass laws to that end.
Now, of course, the first federal judge has declared a major part of the health-care reform law unconstitutional. About two dozen other challenges are in the legal pipeline, and it’s likely that other judges will agree. (Two judges have already upheld the law.) Clearly, the last word on the law will belong to Breyer and his colleagues, probably some time next year.
One particular section of Judge Henry Hudson’s decision yesterday drew my attention. In my Breyer piece, I noted a decision Breyer wrote earlier this year, United States v. Comstock. The ostensible subject of the case was whether the United States could hold “sexually dangerous” persons in custody beyond the length of their prison sentences. But the subtext was very different: the scope of the power of the federal government to pass legislation. Breyer provided a broad conception of federal power, and it wasn’t difficult to read between the lines. He was providing a legal roadmap for protecting the constitutionality of health-care reform. As Professor Pamela Karlan of Stanford told me, Comstock was “really a case about health-care reform—if Breyer’s view of the Necessary and Proper Clause is correct, then the health-care reform is O.K.”
So it was striking to read Judge Hudson cite Comstock repeatedly in overturning part of the law. Personally, I found Hudson’s opinion unpersuasive. His invocations of Comstock were particularly misleading, in my view. But I found Hudson’s use of Comstock illustrative of a larger point. Judges, to a great extent, can do what they want. They can manipulate precedents to reach the conclusions they want to reach. In high-profile cases, the decisions are more about politics than law. If Hudson can cite Comstock for precisely the opposite of what that decision was clearly intended to do, all bets are off. The fate of health-care reform will rest not with the skill of the lawyers who will argue it—or in the words of the cases on which they will rely—but on the preferences of the nine Justices who will decide the case.
Photograph: DBKING/FLICKR CC
