Between now and whenever the Supreme Court issues its decision on Obamacare (I predict the last day of the term in late June next year), there will be endless reading of the tea leaves, textual analyses of the briefs, the dynamic of the oral argument, and so forth. (Will the Court limit the number of amicus briefs it will take on this case? America’s forests ought to be very worried if they don’t, given the amount of paper that may be consumed in amicus briefs on this.) So I may as well offer my two cents.
There are a couple of big tests coming. One is whether it is really true that, as the old saying goes, the Supreme Court follows the election returns. That’s one interpretation of the infamous “switch in time that saved nine” in 1937, at the time of FDR’s (successful) court-paking scheme. (“Wait!,” I can hear you asking; “Did Hayward just say successful court-packing scheme?” Yes I did. I’ll explain that some other time.) If there is any truth to this axiom, then you’d think the Court will take note of the Tea Party and the 2010 election returns somewhere in the back of their mind.
The second big question will be the Court’s willingness to overrule some old precedents like the Wickard case I mentioned here briefly the other day. A very sage and wizened friend wrote me to say:
God knows, I ain’t no prophet, but after reading Silberman’s opinion, I don’t see how we win unless Wickard is overruled or substantially modified. There’s nothing in Larry’s opinion that Nino hasn’t already subscribed to in various opinions. So, even assuming Kennedy, Roberts, and Alito do the right thing (which is a big assumption), where the hell is our fifth vote? Clarence, bless him, is the only one we can count on.
I can’t quarrel with the reasoning here, except that, as noted yesterday, this is no ordinary case—not with 5 ½ hours of argument allotted for it. If ever the Court was going to revisit “long settled” precedents, this will be it. In this regard, The Hill has an interesting story this morning about Democratic anxiety over the case, based partly on their enduring outrage that Citizens United overruled several key precedents nearly as old as Wickard:
The pessimism is fueled in part by the John Roberts court’s decision in the 2010 Citizens United case on corporate spending in elections, which [Democratic Sen. Sherrod] Brown has called the “worst” in his memory.
Don’t forget that the Court’s opinion in Citizens United wasn’t by Roberts, but came from the key swing justice, Anthony Kennedy. And here’s excerpts from the relevant passage where Kennedy discusses overturning several key precedents:
Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error. “Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned We have also examined whether “experience has pointed up the precedent’s shortcomings.” Pearson v. Callahan, (2009).
These considerations counsel in favor of rejecting Austin, which itself contravened this Court’s earlier precedents in Buckley and Bellotti . . . “[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision.” Helvering v. Hallock, (1940).
For the reasons above, it must be concluded that Austin was not well reasoned. The Government defends Austin, relying almost entirely on “the quid pro quo interest, the corruption interest or the shareholder interest,” and not Austin’s expressed antidistortion rationale. When neither party defends the reasoning of a precedent, the principle of adhering to that precedent through stare decisis is diminished. Austin abandoned First Amendment principles, furthermore, by relying on language in some of our precedents that traces back to the Automobile Workers Court’s flawed historical account of campaign finance laws, see Brief for Campaign Finance Scholars as Amici Curiae; Hayward, 45 Harv. J. Legis. 421. . .
[And] Austin is undermined by experience since its announcement. . .
Translation into plain English: We might be willing to overrule old precedents if we believe they were poorly reasoned, and if subsequent experience shows the precedent to be stupid. If ever there was a poorly reasoned opinion contravened by subsequent experience, it is Wickard. And don’t overlook that key quotation from Kennedy: “[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision,” along with Kennedy’s original line that precedent can be rejected when “adherence puts us on a course that is sure error.” If ever there was a law that puts us on the course of “sure error,” it is the individual mandate of Obamacare. This all suggests an openness to revisiting a precedent on Kennedy’s part. And as in so many cases, if Kennedy goes there, it’s a 5-4 win. (And yes, the amicus brief Kennedy cites that demolished the Auto Workers precedent was from my spouse. I’m hinting she should write another brief for this case