As the ten year anniversary of Bush v. Gore is recalled, not especially fondly (or worse — ok, somebody likes it), an interesting debate is emerging over whether the federal courts — on key politically charged issues — are simply breaking down along partisan lines:
“The constitutionality of health care reform has gone from a fairly obscure and almost frivolous issue to a litmus test for what judges stand for,” Toobin says. For decades, and with few exceptions, he notes, the commerce clause has been more or less understood as a blank check for Congress. The health care row changed all that.
Says Toobin, “it’s an example of how the center has shifted to the right in judicial politics.”
I would say in addition to health care and the Commerce Clause, we’ve seen some strange preemption arguments over Proposition 8, the federal government’s right to set immigration policy,and DADT that have turned traditional conservative/liberal notions of jurisprudence on its head.
You could probably add that case about plausibility in pleading standards to the list, though who the hail gives a hoot about that dumb issue?