NFIB v. Sebelius and Judicial Decision-Making I: Stare Decisis

Mark Tushnet has an expectedly brilliant series of posts about the ACA cases up chez Balkin, all of which merit some discussion.   I’ll start with the least counterintuitive argument (from the perspective of Tushnet, in my view the most accomplished scholar to come from the Critical Legal Studies tradition.)   Tushnet has more about why the argument that the doctrinal content of Roberts’s opinion make the case a secret win for conservatives doesn’t hold up:

A judicial decision resolves a case by invoking a rule that supports the conclusion the court reaches in awarding victory and defeat. The rule’s meaning is, at the moment of decision, only that it covers this specific case. Its content will be developed as later courts deal with new cases.

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NIFB can’t possibly be a Pyrrhic victory, a cloud with a silver lining, a battle won though the war was lost, a war that was won though the battle was lost — I refrain from providing the links — until we see what courts in the future make of it.

And I would reiterate that if future courts wanted to pursue an aggressive program of restricting the federal government’s powers, they wouldn’t need Roberts’s opinion. Lopez and Morrision would work just find as precedents, and as Lopez itself shows new precedents can always be created, or past precedents can be directly overruled.

I’ve recently had a discussion with someone who disagrees with my view that precedent doesn’t constrain future Supreme Courts (as opposed to lower courts) in either theory or practice. The argument involved citing some examples of precedent apparently mattering, like Planned Parenthood v. Casey (conservative Court “re-affirms” Roe v. Wade) and Dickerson v. U.S. (conservative Court upholds Miranda v. Arizona in opinion authored by longtime critic of Miranda.) As it happens, this is the argument used by the American politics textbook about how precedent matters, so I have an argument using exactly these cases to show why precedent doesn’t obviously matter.

If we used the stylized political science categories to describe judicial decision-making, precedent would be a “legal” factor. The problem is that the other models provide explanations for Casey that are as good or better:

• The strategic Casey:  the Court tends to prefer to stay within the mainstream of both public and elite opinion.   The holding in Casey is arguably a perfect example of this.  Its holding — that pre-viability abortions cannot be banned by can be substantially regulated also mirrors strong public preferences on the issue.
• The attitudinal Casey:   The outcome in the case is exactly what you’d expect from a court whose median votes are moderate country-club Republicans.   The case uses the same framework that O’Connor had been advocating since 1983.   It also reflects the ambivalence of Kennedy, an anti-abortion Roman Catholic who also strongly supports the right to privacy.

Further details about Casey, however, make the idea that precedent was constraining the Court particularly implausible. First of all, to reach its holding the Court had to overrule two important abortion precedents. And it had to do so because at the same time it was celebrating the importance of stare decisis the Court was replacing Roe with a different legal standard defended with a different rationale. Rehnquist’s dissent, it must be said, is devastating on this point:

Whatever the “central holding” of Roe that is left after the joint opinion finishes dissecting it is surely not the result of that principle. While purporting to adhere to precedent, the joint opinion instead revises it. Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality.

Casey didn’t really re-affirm Roe so much as it replaced it with a new holding more congenial to the preferences of the plurality opinion that had some overlap with the old one. And while Casey is a particularly stark example, I think it also illustrates the problem with trying to isolate “legal” and “non-legal” factors. Legal practice permits the Supreme Court to modify or overrule its own precedents, so stare decisis is always discretionary, and this exercise of discretion can never be a technical legal question.

This isn’t to say that precedent is entirely irrelevant. I do suspect that the substantive effects of Roe had some effect on the Casey plurality, especially Kennedy — Dan Pinello has found that political elites are more reluctant to take granted rights away than they are to grant them in the first place. The Supreme Court may not have created the precise rules in Miranda were it deciding the case for the first time in 2000, but had little reason to override ways of doing things that (as I suspect even Rehnquist realized) police could live with perfectly well. Precedent can matter when precedent creates specific, entrenched institutional practices — but this has nothing to do with the dicta in Robert’s NFIB opinion. Roberts’s opinion will mean what future courts want it to mean.