Even though I’m a lawyer, I probably look at the opinion from Florida federal district court judge Roger Vinson more in political terms than in legal terms. I haven’t gone trolling over on the blogs of the Right to see whether there is exaltation over this decision. I’m interested, though, in the idea of whether anyone on the Right has commented on the idea of how this decision is an example of judicial activism. It’s my impression that commenters on the Right become apoplectic when there is a decision by a judge which goes in the general direction of something the Left likes (Roe v. Wade, for instance). However, when the decision comes down on the side of the Right (different from the side of all that is right), then it’s just the judge doing his duty. And no this is not something that both sides do – the rallying cry of “judicial activism” belongs solely to conservatives, except to point out their hypocrisy.
Notwithstanding the foregoing paragraph, it is interesting to note what lawyers and legal experts are saying about the opinion, rather than the politics of the opinion. One idea that’s been roundly criticized is the fact that the judge did not sever the mandate (which he found unconstitutional) from the other provisions of the law. This apparently goes against standard practice:
In addition to declaring the mandate unconstitutional, Vinson declined to “sever” it from the rest of the law, and instead held that the entire law out should be thrown out. That goes far beyond standard practice, under which courts tend to defer to Congress and sever only the provisions of law that they find unconstitutional — even if Congress didn’t include a “severability clause” in the legislation.
“The lack of deference to Congress here is just breathtaking,” said Washington and Lee University professor Timothy Jost.
So if you want to talk about judicial activism, it’s pretty easy to get there when the opinion is criticized for not defering to the legislative body that created the law.
When I want to get in touch with what conservative legal commentators have to say about a legal issue or case, I usually go to Orin Kerr. He writes at The Volokh Conspiracy which is a good legal blog that also happens to be conservative. So Professor Kerr starts by saying that he likes the fact that Judge Vinson does a better job than the previous judge (Judge Henry Hudson of Virginia) of justifying his decision. He still ultimately comes down against Judge Vinson, saying “I think Judge Vinson’s argument on the Necessary and Proper Clause is not persuasive.” He adds:
Now let’s return to Judge Vinson’s analysis of the Necessary & Proper Clause. The words of the relevant Supreme Court cases point to an extremely broad power, and Judge Vinson is supposed to be bound by those words. But Judge Vinson concludes that these words can’t be taken at face value because “to uphold [the mandate] via application of the Necessary and Proper Clause would [be to] . . . effectively remove all limits on federal power.”
This might work as a Supreme Court opinion that can disagree with precedent. But Judge Vinson is just a District Court judge….
Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way….