Let’s not get carried away

Richard Epstein, the illustrious University of Chicago law professor, writes of today’s decision on Obamacare:

The decision of Judge Henry Hudson in Virginia v. Sebelius is no bird of passage that will easily be pushed aside as the case winds its way up to its inevitable disposition in the United States Supreme Court. The United States gave the case its best shot, and it is not likely that it will come up with a new set of arguments that will strengthen its hand in subsequent litigation.

That’s true. However, as Epstein eventually acknowledges, the United States will come up with different judges.
It’s for this reason that Rep. Eric Cantor is too exuberant when he says, “after a broad cross-section of the American public rejected Obamacare, now the American legal system is rejecting its constitutional basis.” Sen Orrin Hatch also goes too far in proclaiming that “today is a great day for liberty.”
If a liberal district court judge had upheld the constitutionality of Obamacare, I’d be downplaying the importance of the decision. I think the same response is warranted to the decision of Henry Hudson, a conservative district court judge. His view of the merits — sound though it may be — almost certainly will neither influence nor help us predict how Justice Kennedy, to take one important example, approaches the case.

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