December 14, 2010

THIS NEW YORK TIMES PIECE on ObamaCare litigation contains this bit from Jack Balkin:

Jack M. Balkin, a law professor at Yale who supports the act’s constitutionality, noted that “there are judges of different ideological views throughout the federal judiciary” and said that the health care plaintiffs had helped their cause by filing lawsuits in conservative venues.

As an empirical statement, this is probably true. But doesn’t this kind of undermine the whole “defer-to-the-courts” school of liberal constitutionality? Would Balkin similarly dismiss a victory for, say, gay rights in the 9th Circuit? And should citizens, upon being told that it all depends on the “ideological views” of federal judges, conclude that federal judges’ opinions are entitled to no special deference?

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