Progressives Pronounce Halbig Decision 'Judicial Activism' Then Promise Liberal Judges Will Prevail

Today a three-judge panel of the D.C. Circuit Court issued a ruling which could have a substantial impact on the fate of Obamacare. The panel ruled that the plain language of the law indicates subsidies are only available to states which agreed to set up a state-based exchange. That means, potentially, that people who bought insurance under the federal exchange are not eligible for subsidies to reduce their premiums.

The progressive outrage over the decision has been swift and furious. Many progressives are framing it as a clear case of “judicial activism” by conservative-leaning judges. For instance, the New Republic‘s Brian Beutler said the case is, “a fundamentally dishonest solicitation of right-wing judicial activism.” Over at Vox, Ezra Klein doesn’t use the phrase himself but his write-up does include this tweet:

Halbig straightforward case of conservative judicial activism. It’ll be curious see whether any commentators who opposed ACA acknowledge it.

— Harold Pollack (@haroldpollack) July 22, 2014

Think Progress doesn’t use the phrase “judicial activism” but their piece on the decision does say, “we live in times where judges and justices can no longer be expected to
rely on established law, especially when they are presented to an
opportunity to undermine Obamacare.” A rose by any other name.

But there’s something curious about the way all of these progressives have responded to this case of judicial activism, i.e. two conservative judges siding with the plaintiffs arguments. All of the sites in question have been quick to point out that the case will now be reviewed “en banc” by the liberal D.C. Circuit. Here’s Ezra Klein’s take:

The decision broke, as these decisions often do, on party lines: the two Republican-appointed judges ruled against the administration and the
judge appointed by Democrats ruled for the administration. That decision is expected to be reversed when the Obama administration asks for an en banc hearing, in which the full D.C. Circuit Court hears the case: most of the judges are Democratic appointees.

Wink, wink. Once Democratic appointees get hold of this the result will be different. Another update at Vox says the same thing in more detail:

The federal government has already stated that it’s going to request “en banc” review of the Halbig decision. If the D.C. Circuit court grants that request, that would mean all eleven judges would review the ruling issued by the panel of 3 judges drawn for the case.

The D.C. Circuit as a whole skews liberal than the panel of three judges who heard the case — there are 7 judges appointed by Democrats and only 4 appointed by Republicans — meaning there’s a decent chance en banc review could reverse the decision.

The Fourth Circuit also skews liberal, so even if the plaintiffs requested en banc review in the King case, that ruling would stand.

Thank goodness liberal judges will prevent any partisan activity on the courts. Brian Beutler at the New Republic also predicts victory in the “en banc” D.C. Circuit stacked with liberals:

I’ve always assumed that the challenge will ultimately fail. It will
almost certainly fail this fall, in an en banc ruling of the entire
Circuit Court, and perhaps later before the Supreme Court.

He’s right it will almost certainly fail. What he doesn’t say is why. The answer, as we’ve seen elsewhere, is the stacked, partisan make up of the full court. And finally here’s Think Progress:

[The two judges who ruled against subsidies] own colleagues are unlikely to allow this opinion to stand for long. The federal government may now appeal this decision to the full United States Court of Appeals for the District of Columbia Circuit, where Democrats enjoy a 7-4 majority among the court’s active judges. It is unlikely, to say the least, that a Democratic bench will strike down President Obama’s primary legislative accomplishment based on the highly doubtful reasoning contained in Randolph and Griffith’s opinion.

So progressives proclaim a decision by two judges a case of right-wing judicial activism but then, a few sentences later, assure readers that liberal justices on a packed court will undo the ruling. In one instant partisan judges are a scourge and in the next instant they are the saviors of sane jurisprudence. It’s almost as if these authors don’t care about the underlying principle at all.