Five (More) Thoughts on the Healthcare Decision

  1. 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.
  2. 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?
  3. 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.
  4. 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.
  5. The Chief cites a number of non-law review journals, but not one law review (that I could see.)  Piling on, much?

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1 Response

  1. A.J. Sutter says:

    I agree about the Fishkin post; and what contributes to the hyperbole of the comment “The decision was the most important court victory for liberalism in my lifetime” is that significant decisions even under the Burger Court (to say nothing of the Warren Court) may antedate Prof Fisher by just a couple of years (e.g., I’d guess only 5 or 6 in the case of Roe and US v Nixon).

    But your comment about praising Justices “for their fidelity to the rule of law” if they follow the CJ’s language on the Commerce Clause issue begs the question of whether the language really is precedential. Indeed, we might blame them for incompetently confusing dicta with precedent, or for blurring the line between the two intentionally and in bad faith, or for simply being weak and not sticking to their previous convictions (unlike, in many cases, Scalia, Thomas and Alito). I don’t imagine that any of the four Justices on the Ginsburg opinion will act in bad faith or be incompetent, though weakness of conviction is perhaps a possibility for one or two. The bets are off, though, about how to characterize the actions of any future Justices who may treat the CJ’s remarks as precedent.