In it, but not of it. TPM DC
"It's hard to avoid the conclusion that the courts are breaking down along partisan lines," says Timothy Jost, a professor at Washington and Lee University who's been tracking the lawsuits closely.
So far, two district court judges appointed by President Clinton have dismissed constitutional challenges out of hand. The first ruling, by Michigan judge George Steeh, directly address the argument over the mandate. He rejected the plaintiff's arguments out of hand.
"The decision whether to purchase insurance or to attempt to pay for health care out of pocket is plainly economic," he wrote. "These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers and the insured population, who ultimately pay for the care provided to those who go without insurance."
But in early rulings in Florida and Virginia, two Republican-appointed judges have been plainly skeptical of the Obama administration's argument.
Roger Vinson, a Reagan judge, called the use of the commerce clause to regulate inactivity "unprecedented."
"The individual mandate applies across the board," Vinson wrote in October, in a ruling which allowed a Florida lawsuit involving nearly two dozen states to proceed. "People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive."
Before the year is out, George W. Bush-appointed judge Henry Hudson will rule on Virginia Attorney General Ken Cuccinelli's challenge. In his ruling allowing the case to move ahead, Hudson wrote, "The [individual mandate] literally forges new ground and extends Commerce Clause powers beyond its current high watermark.... While this case raises a host of complex constitutional issues, all seem to distill to the single question whether or not Congress has the power to regulate -- and tax -- a citizen's decision not to participate in interstate commerce."
Court watchers have noticed the schism dividing Republican and Democratic judges on this issue. For Republican appointees, the mandate raises key Constitutional concerns. Many observers expect that they'll rule against the administration based on their early writings. Democratic appointees, by contrast, are nowhere near as sympathetic to the plaintiffs.
"I... think that both Vinson and Hudson have bought into the idea that the government can't regulate inactivity, and if they can they can make you eat spinach and so on," Jost said.
"Judges hate it when we journalists immediately identify them with the president who appointed them," says Jeffrey Toobin -- a New Yorker writer, CNN contributor, and author of The Nine. "But it's an extremely useful proxy on many many issues. Particularly, it seems, the scope of the commerce clause."
"The constitutionality of health care reform has gone from a fairly obscure and almost frivolous issue to a litmus test for what judges stand for," Toobin says.
For decades, and with few exceptions, he notes, the commerce clause has been more or less understood as a blank check for Congress. The health care row changed all that.
Says Toobin, "it's an example of how the center has shifted to the right in judicial politics."
That's not to say politics governs everything.
"Judge Vinson in Florida dismissed five of the seven counts, including some that really meant a lot to right wing conservatives. And so one way of reading it -- and some do -- is that it was a kind of tricky thing to do because he wanted to set it up to look like he was reasonable before kicking the government in a vulnerable spot," Jost said. "I think that's probably ungenerous."
And on non-health care issues, conservative judges haven't always served as stand-ins for the Republican politicians who appointed them. Famously, the Roberts Supreme Court ruled against President Bush on some seminal Guantanamo Bay cases -- and the list goes on.
Nelson Lund, a professor at the George Mason school of law cautions that it's a bit early to make sweeping conclusions about the judiciary based on the small handful of rulings in health care reform cases.
"I don't know that it reflects anything new," Lund says. "The constitutionality of the individual mandate under the commerce clause is unique, because it's very easy to make legal arguments on both sides."
"You've got a small sample here, so I'd be hesitant to infer too much about it," Lund says. "I wouldn't be surprised if you get Republican judges predominantly going one way, and Democratic appointed judges going the other, but the sample really is pretty small."
But health care does seem to be accentuating the partisan divide on the federal bench. And, though it's possible Vinson or Hudson will shock the country by ruling for the government, it probably won't happen.
[Ed note: This piece was edited after publication]