Let’s put aside the question of whether the ruling is in fact judicial activism, or whether it was simply a proper application of non-delegation principles. What about “conservative?” Emily Bazelon of Slate writes,
Judge Tingling walked on by all of that in striking down the Department of Health order. And of course he’s not the first conservative judge to find that activism from the bench is awfully appealing when it allows you to sweep away laws you don’t like.
How do we know that Judge Tingling is a conservative? He’s an elected judge in Manhattan, and received the endorsement of the Rangel machine, among other liberal endorsements. I recognize the temptation for Bazelon to try to score political points by tying Tingling’s ruling to a broader critique of “conservative judicial activism,” but she doesn’t have any evidence that Tingling is “conservative” beyond this one opinion on a local issue (I know, I asked her). And I’m not sure that even this opinion is “conservative.” Is it “conservative” to, as they saying goes, oppose the government telling people what they can do with their own bodies? Conservative to be concerned about executive overreach? Conservative to oppose a paternalistic law that will disproportionately control the actions of minority populations, who overwhelmingly opposed the law?
I’m not buying it. Whatever one thinks of Judge Tingling’s opinion, it strikes me as more than a stretch to link it, as Bazelon does, to the “four-judge dissent in the Supreme Court’s ruling on Obamacare last June.”
H/T Josh Blackman