In big Supreme Court cases, it’s all about winning

A number of good conservative legal commentators have taken solace in the fact that the Supreme Court found that the Obamacare mandate cannot be upheld under the Commerce Clause. For example, Michael James Barton writes:

The mandate is upheld as a tax, using the coercive — but not unlimited — power that Congress has always possessed. This is a distinction with a very big difference. Had Obamacare been upheld under the Commerce Clause, then our Constitution would have been a dead letter without limits on congressional power. We still have our Constitution.

I’m not consoled. The vote on the Commerce Clause was 5-4. If the next Court to hear a big Commerce Clause case has one additional liberal Justice (in net terms), then today’s holding on that provision will be distinguished away in one fashion or another.

A decision upholding the mandate under the Commerce Clause would have been vulnerable to the same fate in a more conservative future court. Admittedly, this is less certain, since conservative Justices, or at least one variety of them, tend to be a little more respectful of precedent than their left-wing counterparts.

The point is that one should never take too seriously what the Supreme Court says because its pronouncements about the law are always subject to de facto modification through one bit of manipulation or another. In cases that have the capacity to affect the way we live our lives, it’s only what the Supreme Court does — the bottom line — that is likely to matter.

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