Eleven federal judges have ruled on the constitutionality of the individual mandate of the Patient Protection and Affordable Care Act (“ACA”), also sometimes referred to as “Obamacare.” Five of the six judges appointed by Republican Presidents held that the mandate violated the Constitution, while four of the five judges appointed by Democratic Presidents upheld the law. In the wake of these rulings, countless commentators quickly inferred that the judges’ political preferences and affiliations were deciding factors and forecast that the seemingly inevitable Supreme Court decision of the matter would split the High Court 5-4, with Justice Kennedy casting the deciding vote. The four other Justices ap-pointed by Republicans are expected to vote to invalidate the law,
and the four Justices appointed by Democrats are expected to vote to sustain it.
How we came to this juncture, why, and who bears the blame are difficult and divisive questions. But for reasons explored below, all those concerned ought to able to agree that the current state of affairs is regrettable, if not intolerable. In short, as the Obamacare cases starkly illustrate, our constitutional law too often looks and is too much like ordinary, partisan politics by another means. Putting aside questions about the provenance of the present dilemma, this essay ventures a claim about the way out of this situation. Ironically the same cases that so plainly exhibit the problem also provide a means to begin solving it.