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Are Judges Umpires? 10
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or the first year of Barack Obama’s presidency, congressional 13
FRepublicans fought tooth and nail to prevent the enactment of a 14
sweeping health- care reform bill. In March 2010, their efforts appeared 15
to end in failure, as President Obama signed the Patient Protection and 16
Affordable Care Act (ACA) into law. But the policy conflict did not end 17
at that point. Rather, it simply shifted to the courts, with opponents both 18
inside and outside of government filing federal constitutional challenges to 19
the law in multiple jurisdictions throughout the country. When these suits 20
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first started making their way through the federal courts, judges seemed 21
to be assessing the ACA through the same partisan lens as everyone else. 22
The statute had been enacted with solely Democratic votes in Congress, 23
signed by a Democratic president, and challenged in court by Republican 24
state attorneys general and their ideological allies. In the first five federal 25
court holdings resulting from these challenges, three judges appointed by 26
Democratic president Bill Clinton upheld the law, while two appointed by 27
Republican presidents Ronald Reagan and George W. Bush, respectively, 28
struck it down. If the judicial resolution of these disputes had continued 29
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in this vein, with a federal judiciary that had a solid Republican majority 30
eventually disposing of the ACA, Democratic supporters of the act would 31
have complained about what seemed a clear instance of partisan justice. 32
In the event, however, the federal courts stepped back from the par- 33
tisan brink. When the initial district court holdings were appealed, two 34
prominent Republican appointees (Circuit Judges Jeffrey Sutton and 35
Laurence Silberman) drafted opinions upholding the ACA, and a third 36
wrote a widely noted op- ed supporting its constitutionality. And when 37
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the appellate holdings were appealed in turn, Chief Justice John Roberts 38
drafted an opinion upholding it as well. In doing so, Roberts avoided an 39
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