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Second Opinions -- Obamacare Isn't The Only Target Of Conservative Judges

Publication Date: 
May 24, 2012
Source: 
The New Republic
Author: 
Jeffrey Rosen

Professor Michael W. McConnell spoke with Jeffrey Rosen of the New Republic to discuss the potential for court decisions to become politicized.

FOR THE PAST FEW months, the legal discussion in Washington has centered around the Supreme Court's upcoming ruling on health care reform. Far less attention has been paid to a decision issued by the U.S. Court of Appeals for the D.C. Circuit on April 13--even though it may prove, in the long run, to be similarly significant.

At first glance, the case, Hettinga v. United States, doesn't seem to merit much attention, since it concerns a less-than-scintillating subject: the production and distribution of milk. The challengers, Hein and Ellen Hettinga, who own two large milk production and handling companies, were seeking to overturn a federal mandate based on the Agricultural Marketing Agreement Act of 1937. This mandate requires large milk producers and distributors to contribute to a common fund so that the small operators get the same price for their milk. (The mandate could arguably be viewed as one of the last vestiges of centralized, New Deal-style price controls.) Not surprisingly, in a short, unsigned opinion, the D.C. Circuit upheld the mandate, citing a 1993 Supreme Court opinion saying that laws involving economic policy deserve "a strong presumption of validity."

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To be sure, not all legal conservatives have embraced this activist position. Professor Michael McConnell of Stanford Law School, a former judge on the U.S. Court of Appeals for the Tenth Circuit and one of the most respected conservative defenders of traditional judicial restraint, noted in a response to Greve at the Yale conference that "democracy still seems to me to be a worthy project," and that, once "everything is thrown into the court," it "means a politicized judiciary ... that ceases to be a rule of law instrument." But McConnell ruefully admitted that, among legal conservatives, he is in the minority. "It's quite evident that, on the right side of the legal world, the ascendancy is people like Randy Barnett who want a more muscular judiciary," he said.