Legal Commentary

A Reflection on the Recent District Court Decision

By Orin Kerr

In the last year, readers of this blog have seen lots of posts on a major constitutional issue that is likely to reach the Supreme Court soon. And just recently, a District Court Judge issued a stunningly broad decision holding that the controversial law at issue is unconstitutional. Such a decision would have been considered really surprising if not just inconceivable just a few years ago. But times have changed, it seems.

The District Court?s decision has been extremely controversial. According to fans of the new decision ? a group that happens to consist entirely of political opponents of the law ? the new decision is a scholarly and profound application of longstanding constitutional principle. It is a masterful work that reflects a deep understanding of the core ideas on which our Constitutional order rests. To many opponents of the new decision, however, the District Court?s decision was simply political. The judge is basically a hack. His decision is a political position masquerading as a legal opinion, and it was written to try to fuel a political movement that the judge obviously supports.

Anyway, everyone seems to think the case is headed to the Supreme Court, so we?ll have to see how the Supreme Court rules. Stay tuned.

Post Script: Whether this post is about Judge Vinson?s decision this week striking down the new health care law, or, alternatively, Judge Walker?s August same-sex marriage decision striking down Prop 8 ? or, perhaps, both ? is left as an exercise for the reader.

Full post as published by The Volokh Conspiracy on February 03, 2011 (boomark / email).