Judge Justin Walker, now nominated to a powerful federal court dubbed “the second highest” in the nation, remains bitter that the Supreme Court upheld the Affordable Care Act eight years ago.
Walker was serving as a law clerk at the time of the 2012 blockbuster ruling and was infuriated at its resolution. He has continued to reveal disdain for the decision written by Chief Justice John Roberts and offer details about his inside dealings with Justice Anthony Kennedy, one of the dissenters.
“The greatest words you can hear from Justice Kennedy are: ‘You’re hired,’” Walker said at a March 13 investiture ceremony for the district court position he currently holds. “And the worst words are: ‘The chief justice thinks this might be a tax.’”
When Roberts cast the decisive vote to uphold the landmark health care law in 2012, he linked its penalty for people who refused to obtain insurance to Congress’ taxing power. Roberts’ final decision, which came after multiple changes in his reasoning, saved Obamacare but generated intense friction inside and outside the court.
The views of Walker will be spotlighted Wednesday in the US Senate during his scheduled nomination hearing for the US Court of Appeals for the District of Columbia Circuit.
The DC Circuit stands out among US appeals courts of because of its important regulatory caseload and that it has served as a launching pad for many Supreme Court justices, including Roberts, Kavanaugh, and current Justices Clarence Thomas and Ruth Bader Ginsburg.
The 37-year-old Walker, who was a University of Louisville law professor before becoming a US district court judge last fall, has drawn opposition because of his limited legal experience and for his firebrand conservatism even after donning the robe. The American Bar Association rated him “not qualified” for his current judgeship.
In a recent move, Walker issued an opinion related to drive-in church services and the Louisville mayor’s social-distancing order, without hearing first from the mayor. “On Holy Thursday, an American mayor criminalized the communal celebration of Easter,” Walker declared as he opened his opinion.
Front-row seat to the court’s Obamacare drama
Signed by President Barack Obama, who later embraced the “Obamacare” name, the Affordable Care Act required all Americans to obtain coverage and created a marketplace for purchasing insurance. It also expanded Medicaid for poor people and protected diabetics, cancer patients and other individuals with pre-existing conditions from being denied coverage.
Republicans opposed the legislation from the start, saying it infringed on individuals and businesses as it aimed to insure millions more Americans and control spiraling medical costs. Texas and other GOP states, which joined the National Federation of Independent Business in the first Obamacare suit known as NFIB v. Sebelius, have continued to challenge provisions of the law.
Trump ran against it as a presidential candidate and his administration is still seeking to void the law, which after a decade has affected nearly every corner of the health care system.
Walker has called Roberts’ 2012 opinion “indefensible.” In his recent remarks at the March investiture, he further revealed an us-versus-them mindset. After thanking McConnell, Kavanaugh and other supporters, he referred to his “nomination’s opponents,” including, he said, the American Bar Association.
“Thank you for serving as an enduring reminder that although my legal principles are prevalent, they have not yet prevailed,” Walker said. “And although we are winning, we have not won, and although we celebrate today, we cannot take for granted tomorrow, or we will lose our courts and our country to critics who call us terrifying and describe us as deplorable.”
His demeanor belied Roberts’ constant admonition that judges are impartial and non-partisan, ruling without “fear or favor.”
But he has enjoyed the longtime backing of McConnell, a Louisville family friend who persuaded Trump to nominate Walker. McConnell has been an unyielding partner to Trump in stocking the federal bench with conservatives.
On April 3, three weeks after the Louisville investiture and six months after he first took the federal bench, Trump announced that he would elevate Walker, a Harvard law graduate who still serves as a part-time law professor at the University of Louisville, to a coveted seat on the DC Circuit.
Walker did not respond to a CNN request for an interview.
Endorsing Kavanaugh opinion as a ‘roadmap’
Eight years ago, during the Supreme Court’s heated deliberations over the constitutionality of the ACA, the five conservative justices, including Roberts and Kennedy, believed that the individual insurance mandate exceeded Congress’ power to regulate interstate commerce. But Roberts thought the invalid provision could be separated from much of the sweeping law.
Kennedy, however, joined by fellow conservative Justices Antonin Scalia, Thomas and Samuel Alito, believed the individual mandate was interconnected to other provisions of the new law and would entirely sink it. Law clerks at the time portrayed Walker as vigorously arguing the mandate central to provisions such as those guaranteeing coverage for pre-existing conditions and expanding Medicaid coverage to needy people.
When Kennedy and the other justices declined to sever the individual insurance requirement from the rest of the law, Roberts turned to Congress’ taxing power as grounds to uphold the mandate, which carried a penalty for people who did not buy insurance. Roberts was joined by the four liberal justices to uphold the law.
Walker in March remarked that it was still the “worst thing” he ever heard from Kennedy. It was not the first time Walker had referred to the 2012 deliberations in a highly public way. He spoke about the experience in 2018 when he was backing Kavanaugh as a successor to retiring Justice Kennedy.
Kavanaugh, as a DC Circuit judge in 2011, had taken up a separate Obamacare dispute that became something of a litmus test among conservatives examining Kavanaugh’s record. (Walker was a law clerk to Kavanaugh 2010-2011 but had already moved to the Supreme Court when the DC Circuit issued its ACA ruling.)
In the DC Circuit case, Kavanaugh rejected a challenge to the ACA on procedural, rather than substantive, grounds. Yet Kavanaugh commented on Obamacare at length, calling it “unprecedented” and deeming the administration’s justification for the individual insurance mandate “jarring.” He said it could extend to other mandatory purchases such as of college savings accounts and disaster insurance.
During right-wing skirmishes over who might succeed Kennedy, Walker vigorously defended Kavanaugh’s credentials, especially regarding his ambiguous ACA opinion. In one article, Walker referred to “Kavanaugh’s thorough and principled takedown of the mandate” and asserted that it had even guided dissenting justices in the Supreme Court’s 2012 decision.
“I am very familiar with that opinion, because I served as Kennedy’s law clerk that term,” Walker wrote. “I can tell you with certainty that the only justices following a roadmap from Brett Kavanaugh were the ones who said Obamacare was unconstitutional.”
Some legal observers today say Walker’s comments reflect a lack of judiciousness.
“Usually the clerks are extremely circumspect about their time working on cases,” said Josh Blackman, author of the 2013 book “Unprecedented: The Constitutional Challenge to Obamacare” and a professor at South Texas College of Law. “I was very stunned about how cavalier he was with that issue.”
Fatima Goss Graves, president of the National Women’s Law Center, said his remarks suggest a disregard for precedent. When you put on a robe, there is an expectation for people, and part of that expectation is around the rule of law and a consistency in approach,” she said.
During the Senate’s consideration of Walker for the US trial court spot in 2019, he was guarded about his ACA views.
Sen. Dianne Feinstein, the senior Democrat on the Senate Judiciary Committee, asked Walker in a written question about his praise of Kavanaugh for providing a “roadmap” to strike down the ACA’s individual mandate and about Walker’s own assertion in a 2018 article that the Supreme Court’s ruling was “an indefensible decision.”
Walker responded in August 2019 that he was opining as an individual outside of the judiciary.
“I understand that the role of an academic and a citizen engaged in the political process is different than the role of a judge or a judicial nominee,” Walker wrote. “The canons of judicial conduct preclude me, in my role as a judicial nominee, from going beyond what I said in the 2018 article.”