I said it earlier this week, but it bears repeating: the power of Chief Justice Roberts’ commerce-clause constraining language in the Health Care Case matters only to future Justices who are disposed to be be constrained by precedent. It would be useful for critics of the decision on the left and the right to name Justices they think will act differently in the future based on the language in the Chief’s decision. Because those would be Justices we ought to praise, in general, for their fidelity to the rule of law. Indeed, the role of precedent in arguments about health care is a bit of a mystery. It looked to me in the two years leading up to the argument that anti-mandate proponents were arguing for an aspirational constitution (see, e.g., every post of the Kerr-Barnett debate). Now, they’re purported gleeful that there is a precedent to hang a hat on. But why? I thought con law prognostication amounted only to identifying a correct and incorrect reading of the document, not a dirty exercise in vote counting.
Isn’t the point of posts like these an attempt to de-legitimize the court’s decision? Why would it matter if the Chief switched his vote – especially in response to political headwinds. Don’t conservatives want the court to be responsive to political pressure (e.g., Kelo, Roe)? Is trying to get a sense of what would happen if the court had thrown out the ACA really a version of the Scalia-googling-facts problem?
Conversely, Joey Fishkin’s position also seems either aspirational or wrong. Or both. The ACA will move the needle of public opinion on the necessity of insurance coverage if it doesn’t produce disastrously bad adverse selection problems, coupled with a talking point (taxes & costs going up) to hammer liberals with for the next decade. It’s sort of likely saying that SOX or Dodd-Frank were were transformational progressive corporate governance initiates. I hope not. The Court didn’t create a victory for liberalism: the law’s success might. Since it seems quite unlikely to meet the goals it was sold on, perhaps it’s time to put the champagne back on ice.
It’s much too early to conclude a thing from polls, Ilya Somin’s post notwithstanding. The public’s views of the Supreme Court are well-known to be influenced by its coverage, which is increasingly politicized. I will say that posts which tend to emphasize the role of politics in the court’s deliberations seem unlikely to increase the court’s legitimacy. But as a friend pointed out, it’s a confusing time for those who can think of the law only in terms of political power.
The Chief cites a number of non-law review journals, but not one law review (that I could see.) Piling on, much?
Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.