— Thurgood Marshall, in a rare, televised interview he gave back in 1987. This appears to be one of only two media interviews Justice Marshall gave during his entire career.
I wonder if I would put this on my resume. ”Accomplishments: Cited by Supreme Court as ‘Able Discharger.’”
I think one of the more poignant talking points that’s been lost in the discussion over the Individual Mandate in the Affordable Care act is the degree of consensus in the legal academy regarding whether the law was constitutional. I’ve touched on this briefly in the past, but it bares a second look.
When the constitutional challenges to the Individual Mandate started, many folks in the legal academy took one look at the precedents and thought the smart money was on a 6-3, 7-2, or 8-1 decision upholding the mandate. That assumption was only challenged when it seemed like the conservative side of the bench was not enthusiastic about the Mandate. A recent poll from Bloomberg confirms the trend:
Bloomberg surveyed 21 top constitutional scholars and found that, while 19 think the individual mandate of the Affordable Care Act ought to be upheld on the basis of legal precedent, just eight think the Supreme Court will actually do so[.]
When the initial challenges to the Individual Mandate were issued, the majority consensus was that the mandate would be upheld on the basis of established case law. This consensus is represented elsewhere by, inter alia, an ABA journal survey of legal practitioners, academics and court watchers published earlier this year in which 85% of respondents believed the mandate would be upheld. Erwin Chemerinsky, Dean of U. Cal. Irvine School of law, who has written more legal treatises accidentally in his sleep than most lawyers will ever read, noted at the time:
Since 1936, not one federal law has been declared unconstitutional as exceeding the scope of Congress’s taxing and spending power and no spending program has ever been struck down because its conditions on the states are too onerous.
Christina Whitman, who teaches at U. Michigan school of law, notes at the first link above that “The precedent makes this a very easy case[.]” Jesse Choper, from U. Cal. at Berkely, noted that “It’s relatively straightforward — if they adhere to existing doctrine, it seemed to me they’re likely to uphold it.” Elsewhere, Orin Kerr, who teaches at George Mason University and is a regular Volokh Conspiracy contributor (not exactly a crowd friendly to the ACA), said near the outset of the ACA litigation that ”there is a less than 1 percent chance that the courts will invalidate the individual mandate.” So that should give you an idea on where the legal consensus was at the outset of this litigation, even assuming the ideological leanings of the Court.
What will most define the healthcare ruling when it comes down is the Court’s decision to either adhere to precedent, or depart from it. A departure from precedent would of course be a textbook example of what often gets called “judicial activism.” But that is really just a term that people use when they don’t like the way a decision goes. Nonetheless, if one defines activism as wanton departure from legal precedent, the Roberts Court has been one of the most activist courts in history. Justice Stevens noted in his dissent in Citizens United:
[T]he Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990). Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law including FEC v. Wisconsin Right to Life, Inc., 551 U. S. 449 (2007) (WRTL), McConnell v. FEC, 540 U. S. 93 (2003), FEC v. Beaumont, 539 U. S. 146 (2003), FEC v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (1986) (MCFL), NRWC, 459 U. S. 197, and California Medical Assn. v. FEC, 453 U. S. 182 (1981).
Whatever one thinks of the constitutionality of the ACA, there is no question that if it is overturned, it will be a decision based on public policy, and not stare decisis. To be sure, there’s nothing inherently wrong with that: courts make decisions based on policy all the time (virtually every legal practitioner has a laundry list of bad precedent that they think should be re-visted and overruled). But I suspect that the justices who vote to strike down the mandate will attempt to argue, as the majority did in Citizens United, that they are actually being faithful to the court’s precedents. Nothing could be further from the truth.
Everything Paul Campos says should be taken with a grain of salt after he was outed by Brian Leiter for smearing his colleagues in a desperate, fact-free, and self-serving tirade against the rest of legal academia.
Nonetheless, I couldn’t help but crack a smile at seeing Nino once again called out by academics for a lack of intellectual integrity, even if from an ironic quarter. Lyle Denniston, a court watcher of some fifty years, was also unimpressed by Scalia’s Arizona decision, as was Kevin R. Johnson, Dean of the UC Davis school of law. So Campos is in credible company, at least.
Andrew Cohen. Not that I pretend that Andrew Cohen reads my blog, but I’d offer the same comments that I made earlier with respect to the Supreme Court’s approach to oral argument. Tough questions at oral argument don’t necessarily mean that a justice is going to vote against a law; sometimes they pepper litigants with tough questions because they want the litigants to help the justices themselves respond to foreseeable objections when they go to write their opinion. As frustrating as it can be to hear Scalia flippantly conjure up nightmares of ’broccoli bondage,’ it’s certainly conceivable that he was going down that road with an ulterior motive.
I do, however, take Cohen’s point with regard to the lower circuits. Though I think that merely speaks more to the idea that the Supreme Court is as much a political institution as it is a legal institution. The only way judges get on the Supreme Court is by being hand-picked by a politician for the job. There’s plenty of extremely competent jurists of diverse political and legal philosophies who are qualified to sit on the High Court. But the people who make the cut are selected with certain policy goals in mind, and not simply because they’re qualified judges.
I don’t know what’s going to happen—but I think that knocking over the entire Affordable Care Act is too sweeping an act for a Supreme Court that doesn’t want to be viewed as overly political. This is a case that demands a clear and principled ruling and should delineate the bounds of federal power for decades. It’s a case that law students will read for a century. The court needs to draw a clear line for what is and is not acceptable.
The mandate could stay or go. But I think that knocking over the entire act is too much of an overreach for a court that doesn’t want to look like it’s overreaching. And drawing a principled line where the mandate is impermissible but other ways of using the tax code are permissible is very difficult. Ultimately, I don’t see a terribly sweeping ruling from the court. My guess is that, at most, the court will say, “The mandate is unconstitutional. This is why. Here’s how to fix it.” Or, just as likely, “We’re very worried about he constitutionality of the mandate, so don’t do it again. Or if you do, don’t go any further.”
LTMC: One thing that’s good for people to remember when thinking about the Supreme Court is that tough questioning during oral arguments doesn’t necessarily mean that a justice is going to vote against the law. Quite often the judges are asking the tough questions because they want the litigants to help them respond to objections they know are going to come up when they write their opinions. So, e.g., “Broccoli-mania” might not be dispositive.
That being said, there really is no way to know how the justices are going to vote. If we assume that ginsburg, breyer, kagan and sotomayor will vote in favor of the law, that means that only one of the conservative justices needs to flip. Scalia is in play because of his decision in Gonzales v. Raich, which demonstrated that interstate commerce doesn’t require a transaction to occur “across state lines” to be subject to federal regulation. Roberts is in play because traditionally conservative notions of judicial restraint may move him to exercise precisely that. Kennedy is in play for the same reason. Even Alito is in play based on his dissent in Snyder v. Phelps, where he was willing to circumscribe the 1st Amendment in order to make traditionally “actionable” speech subject to civil remedies. Which suggests that he doesn’t hold individual liberty as a shibboleth that need be clung to in his jurisprudence.
I think Kennedy is actually the least likely to flip because he tends to be in favor of robust notions of individual rights in a “negative liberty” tradition; hence the reason why he voted against anti-sodomy laws in Lawrence v. Texas, and why he voted to force California to release 40,000+ prisoners due to 8th amendment violations in Plata v. Brown, which Scalia panned as “the most radical injunction issued by a court in our nation’s history.” Kennedy is probably more suspicious of laws that burden individual rights from a “negative liberty” standpoint than any of the Conservatives on the Court, and is far more consistent in his jurisprudence on that front.
So it really is up in the air at this point. It only takes one of the Conservative justices to flip to uphold the mandate, but no one can say who that would be. Either way, there’s no question that this is one of the more important supreme court cases since D.C. v. Heller or Citizens United. The decision will fundamentally shape the direction of our nation’s healthcare policy upon its resolution. We’ll just have to wait and see what direction that might be.
squashed replied to your post: Personal Notes: On Reading CasesAnd when it’s a Thomas opinion, I close the book. Because Thomas’s opinions are written terribly. Scalia was at least witty.Thomas is horrible 99% of the time. But he is actually fairly lucid when he’s writing…
I’m not going to address Affirmative Action on the whole as theory or practice but I am sympathetic to your unease in finding yourself nodding along to Justice Thomas. I had the similar and unfortunate experience last week while reviewing my Con Law readings. His Grutter dissent is actually a stirring revival of the important and beautiful colorblind interpretation the Equal Protection Clause as well as a reality check on how lax the Court can be with the second prong of the Strict Scrutiny inquiry. I admit, I felt fairly strange telling a friend after class that I was both the President of my law school’s ACLU and (temporarily) in agreeance with Justice Thomas.
Thankfully this sympathy for the (originalist) devil(s) didn’t last too long. This morning I draw caricatures of Scalia sobbing like a baby in the margins of his particularly histrionic United States v. Virginia (1996) dissent. D: < Scalia
Anywho, relevant news is relevant: New York Times - Supreme Court Agrees to Hear Affirmative Action Case
LTMC: if you ever want a reason to hate Justice Scalia, just read Whren v. United States, any case involving the Establishment Clause, or his 8th Amendment jurisprudence, which can be summed up in the following churlish phrase:
"No Proportionality principle lolol" - J. Scalia
That being said, Scalia’s approach to the doctrine of lenity, and his 6th Amendment jurisprudence are both, and I hate to say it…excellent. His interpretation of the Confrontation Clause has saved many a defendant from out-of-court testimony, and his approach to lenity, while sadly not the majority view, nonetheless grants criminal defendants a favorable presumption when the meaning of a criminal statute is unclear or ambiguous. His hard-on for English Common-law as a barometer for original intent is a liability more often than not, but occasionally it leads to good legal precedent. Occasionally.
And when it’s a Thomas opinion, I close the book. Because Thomas’s opinions are written terribly. Scalia was at least witty.
“[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us… . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! … And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! … [Y]our interference is doing him positive injury.” What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991) (emphasis in original).
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