Outside of military operations, there are few individuals with the same degree of raw power held by a federal judge. Since the federal judiciary is supreme in our republic, a federal judge can spring you from Guantánamo Bay, even if Congress and the President both think you should be there.
They are the stewards of the constitution, encouraged not to hesitate even slightly in the protection of liberty, but they are also, as the least democratic and yet most powerful branch, encouraged to exercise their powers with the greatest restraint.
There is of course, a tension between the two principles. Two recent stories highlight this power and why it’s so important.
First, a federal judge has enjoined the military from enforcing its Don’t Ask, Don’t Tell policy:
On Tuesday, Judge Phillips ordered the Pentagon to stop enforcing the "don’t ask, don’t tell" policy, a move that effectively ends the ban on openly gay troops.
The permanent injunction orders the military "immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced" under the policy.
Second, a separate judge has refused to dismiss one of the lawsuits challenging the constitutionality of the Affordable Care Act:
In particular, Judge Vinson allowed two challenges to continue: 1) the individual mandate, the idea that Americans would be forced to purchase health insurance or pay a fine; and 2) the mandate for expanding Medicaid in all states to 133% of the poverty level. Vinson threw out three other challenges to the law, and dismissed a fourth as moot. A separate judge in Detroit ruled last week that the individual mandate was legal and constitutional.
Of course, if Judge Vinson eventually finds the Affordable Care Act violates the Constitution, then he should, like Judge Phillips did for DADT, enjoin the government from enforcing it.
Under current Supreme Court precedent, the challenges to the Affordable Care Act should fail. If the government can tax the wheat in your field and criminalize the marijuana in your backyard — and there’s no dispute that, under current Supreme Court precedent (Wickard v. Filburn and Gonzales v. Raich), the federal government can do both — then the federal government can tax you for not participating in the health insurance market thereby increasing the costs on everyone else.
Similarly, under current Supreme Court precedent DADT should be struck down as unconstitutional. If the government can’t draw arbitrary classifications on the basis of sexual orientation, and can’t prohibit consensual sexual conduct — and there is little dispute that, under current Supreme Court precedent (Romer v. Evans and Lawrence v. Texas), it can’t — then how can it condition military service on sexual orientation and punish certain sexual conduct?
But here’s the bigger point to all of it. The above are thoughts are just the opinions of prior Supreme Courts and my own opinion about what those Courts held. Others can, and do, disagree, and we haven’t even reached issues like stare decisis.
I doubt too many people disfavor both DADT and the ACA and so are keen on both rulings, but there’s no law we can pass to ensure that judges will always rule the way we want them to. A constitutional system — in which the supreme law of the land is less than 20 pages long — is specifically designed so that much is intentionally left to be decided by judges.
The only power we have is to ensure we know who we’re putting on the federal bench for life. Judge Phillips and Judge Vinson surely had opinions of their own about the constitution before either was nominated to the federal bench. If anyone in the Presidency or Senate had a doubt about the judge’s opinions on sexual orientation discrimination or the powers of the federal government, all they had to do was ask.