I’m now working on an article about the constitutionality of the individual health care mandate. To put that issue in context, I’m looking at other cases where a skeptical Court reviewed a major (and controversial) law passed by a new Administration. My prior work focused on situations where the Court engaged in massive resistance by striking down the statute in a “preemptive opinion,” which involves (1) reaching out to decide the constitutional question; (2) overturning precedent to invalidate the law; and (3) coming up with a new theory to support the result.
In this paper, though, I’m going to talk more about the opposite scenario, in which the Court is convinced that an act is invalid but upholds it because of its popularity or because of threats from the elected branches. (I don’t have a nifty term for this category yet, though I’m thinking that “white flag opinion” might work.) These cases display several unusual traits, such as: (1) bending over backwards to avoid deciding an issue that is squarely presented; (2) finding a violation of a right but denying a remedy; or (3) writing a very brief opinion that avoids a discussion of the merits. Some examples include Ex Parte McCardle (the Court let its jurisdiction be stripped in a case challenging the validity of military Reconstruction), The Gold Clause Cases (the Court held that the New Deal Congress could not deny gold repayment on government bonds but held that the bond-holder had no remedy), and Stuart v. Laird (the Court upheld the repeal of the Judiciary Act of 1801 without addressing serious constitutional claims under Article III).
Can you think of any other examples?