POLITICS NOVEMBER 24, 2011
Ever since Bush v. Gore, we’ve come to expect that federal courts will divide along predictable ideological lines: Judges appointed by Democrats are supposed to vote for Democratic priorities, while judges appointed by Republicans are supposed to prefer Republican priorities. In short, many people now assume judicial institutions will behave like legislative ones.
But four recent decisions from the federal appellate courts call this assumption into question. On November 8, Judge Laurence Silberman, writing for the U.S. Court of Appeals for the D.C. Circuit, upheld President Obama’s mandate requiring all Americans to buy health insurance. Silberman is one of the most respected conservative judges in the country; and his decision—along with that of another conservative hero, Judge Jeffrey Sutton of the Sixth Circuit Court of Appeals, who in June voted to uphold the mandate—revealed the legal campaign against Obamacare to be at the margins of conservative thinking, rather than in the mainstream.
That same day, the Supreme Court held oral arguments in the most important privacy case of the past decade: U.S. v. Jones, which will determine whether the police can use GPS technology to track citizens without a warrant. No one was surprised when the four liberal justices questioned the government’s claim that there are no limits to its power to keep tabs on us outside the home. What was surprising was that John Roberts, Antonin Scalia, and Anthony Kennedy seemed just as alarmed as the liberals. During the arguments, justices on both sides indirectly invoked two libertarian conservatives who had voted against the warrantless surveillance—Judge Douglas Ginsburg of the U.S. Court of Appeals in D.C. and Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals.
The fact that four respected conservative judges on the federal appellate courts recently voted against the partisan grain may or may not ultimately convince the conservative justices on the Supreme Court to follow their lead. But they have provided a welcome reminder that, even in an ideologically polarized age, some judges are still willing to be governed by law rather than politics.
THE QUESTION in the GPS case is whether the police can surreptitiously place a GPS device on the bottom of someone’s car without a warrant and monitor his or her movements 24-7 for a month. Nearly all the Supreme Court justices acknowledged that GPS tracking would be far more invasive and susceptible to abuse than the limited forms of electronically enhanced surveillance that the Court has approved in the past, such as using a concealed beeper to help police tail a suspect’s car for 100 miles. When a GPS device is “installed against the will of the owner of the car on the car, that is unquestionably a trespass” on private property, Scalia said. Roberts asked whether the government thought it had the power to put a GPS device on every one of the justices’ cars without a warrant and “monitor our movements for a month.” When the deputy solicitor general said yes, he may have lost the case.
The justices had clearly been influenced by Ginsburg, whose conservative credentials are impeccable. In an opinion striking down GPS surveillance in August 2010, he emphasized that “prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble.”
The appellate courts’ most passionate denunciation of GPS dragnets came from Kozinski, who confirmed his reputation as the leading defender of privacy on the federal bench. “There is something creepy and un-American about such clandestine and underhanded behavior,” wrote the judge, who was born in Bucharest. “To those of us who have lived under a totalitarian regime, there is an eerie feeling of déjà vu.”
Kozinski’s and Ginsburg’s opinions may well influence the conservative justices, to whom they are personally and intellectually close. Indeed, of the conservative justices who spoke at the oral argument (Clarence Thomas was silent), only Samuel Alito expressed consistent sympathy for the government’s case.
When it came to the health care mandate, the opinions by Judges Sutton and Silberman were as striking as those by Ginsburg and Kozinski. Sutton noted that, since the Supreme Court has allowed Congress to regulate economic activities that have a far smaller effect on interstate commerce, “it is difficult to see why Congress may not regulate the 50 million Americans who self-finance their medical care.” Silberman, for his part, stressed that those challenging Obamacare’s mandate were calling into question civil rights laws, drug laws, and other reasonable activities of the federal regulatory state. “The right to be free from federal regulation,” he wrote, “is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local—or seemingly passive—their individual origins.”
Judges Ginsburg, Kozinski, Sutton, and Silberman deserve great respect for refusing to rule along predictable, partisan lines. Now, as they contemplate how to rule in the GPS and health care cases, Chief Justice Roberts and the other conservatives on the Supreme Court have a chance to do the same.
Jeffrey Rosen is legal affairs editor of The New Republic. This article appeared in the December 15, 2011, issue of the magazine.