Laurence Silberman: The conservative judge who upheld health reform

The U.S. Court of Appeals for the District of Columbia Circuit has just ruled the health
(Molly Riley - Reuters) reform law constitutional in a 2-1 decision, which you can read here. What’s more notable than the verdict, however, is its author. Justice Laurence Silberman, who wrote a full-throated defense of the health reform law, has a lengthy history of conservative legal thought.

In the appeals court rulings so far, we’ve seen Republican appointees join an opinion upholding the health-care law and a Democratic appointee join an opinion striking parts of it down. But Silberman, appointed by President Ronald Reagan, is the first Republican appointee to actually author an opinion that finds the health reform law, and its mandated purchase of health insurance, constitutional.

What makes this even more notable is Silberman’s previously rulings, which have been both influential and conservative. Chief among them is his opinion in District of Columbia v. Heller , the case that found the District’s handgun ban to violate the Second Amendment. That opinion was upheld by the Supreme Court in a landmark 2008 ruling, the first time the court had taken up the issue of whether the Second Amendment protects rights to bear arms for self-defense.

What Silberman wrote in today’s opinion hews very closely to the legal argument that the Obama administration has pushed in the courts: The federal government has a constitutional right to regulate an individual’s choice not to purchase insurance, because that decision has an economic effect on others. Here’s what Silberman writes on that issue:

It suffices for this case to recognize, as noted earlier, that the health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services.

Silberman goes on to compare the individual mandate to issues of civil rights. He concedes that the mandated purchase of health insurance “certainly is an encroachment” on freedom, but “no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race.”

Legally speaking, the ruling today is a bit moot: The Supreme Court has already scheduled a conference Thursday to discuss whether to take up any of the challenges to the health reform law. It’s not even looking at this case, since the ruling had yet to be issued when the Supreme Court scheduled its conference. (In a bit of a nod to the District’s late timing, Silberman promises to be “sparing in adding to the production of paper”). But politically, it suggests that judges’ political and judicial histories do not necessarily provide reliable guidance as how they will rule on the health reform law.