Orin Kerr has an interesting reaction to Judge Roger Vinson‘s ruling throwing out the entire ACA, namely that it substitutes his view of how things should be for existing precedent:
This might work as a Supreme Court opinion that can disagree with precedent. But Judge Vinson is just a District Court judge. And if you pair Justice Thomas’s dissent in Raich with Judge Vinson’s opinion today, you realize the problem: 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. Remember that in Raich, the fact that the majority opinion gave the federal government the power to “regulate virtually anything” was a reason for Justice Thomas to dissent. In Judge Vinson’s opinion, however, the fact that the government’s theory gave the federal government the power to “regulate virtually anything” was a reason it had to be inconsistent with precedent.
Obviously, I’m not arguing that Judge Vinson was bound by Justice Thomas’s dissent. Rather, my point is that Judge Vinson should not have used a first principle to trump existing Supreme Court caselaw when that principle may not be consistent with existing caselaw. Either Justice Thomas is wrong or Judge Vinson is wrong, and Judge Vinson was not making a persuasive legal argument when he followed the first principle instead of the cases. Because Judge Vinson is bound by Supreme Court precedent, I would think he should have applied the cases.
Only lawyers really care about “existing case law,” because they’re trained to be able to decipher it. Most Americans are, again, approaching this from the point of view of constitutional first principles, which is why I ultimately think Vinson’s ruling was so political. This is actually about winning an argument outside of court. Liberals win the legal argument easily based on precedent, they’re losing the political one badly–as Steve Benen‘s account of the relative differences in coverage of ACA rulings shows.
Vinson’s ruling, for the reasons Kerr identifies, is the definition of “activism,” but that term is so selective that it’s lost almost all meaning. Conservatives, liberals, and libertarians all agree that good precedents should be upheld and bad ones should be overturned. We all disagree on which ones are bad and which ones are good, but conservatives have been really effective at defining activism in starkly political terms. Again, that reflects an understanding of the judiciary as a political and politicized institution that liberals have really failed to appreciate, and it’s one of the reasons they’re losing this fight.