Of course the law imposes constraints; judges cannot strike rules down simply because they dislike them. But there is no question that the ultimate fate of rules protecting health, safety, and the environment may ultimately depend on whether the judges on the panel were appointed by a Republican or a Democrat.
We have very recent examples. I mentioned the Environmental Protection Agency’s important cross-state air pollution rule, which is expected to prevent, each year, 13,000 to 34,000 premature deaths, 15,000 nonfatal heart attacks, 19,000 hospital and emergency room visits, and 400,000 cases of aggravated asthma. On highly technical grounds, the court of appeals for the District of Columbia Circuit invalidated that rule just this August, by a majority vote of 2–1. (You can guess the political affiliation of the president who appointed the two judges in the majority.) Also this August, a different panel of the same court invalidated the graphic health warnings for cigarettes, again by a majority vote of 2–1. (Yes, the judges in the majority were appointed by Republican presidents.)
What this evidence suggests is that many of the biggest battles of the day—over health care reform, financial reform, environmental protection, workplace safety, civil rights—will ultimately be settled in court by lower-court judges in rulings that will get little public attention. The Supreme Court has upheld the Affordable Care Act, but some of the rules that are necessary to implement it may turn out to be vulnerable. Unlike presidents, judges often stay in their jobs for decades, and any president is in a position to shift the judiciary in major ways. Of course it is true that the 2012 presidential election will help to establish the meaning of the Constitution. Perhaps equally important, it will help to establish the fate of numerous rules designed to protect public safety, health, and the environment.Read the whole thing!