Friday, August 03, 2012

One Last Take on the ACA Decision: A New World of Activism

-- Posted by Neil H. Buchanan

In one of my occasional dalliances with other legal commentary sites, I recently wrote a piece for Jurist, which is supported by the University of Pittsburgh's law school. In "Fringe Legal Positions and the Supreme Court's ACA Decision," I took what I hope is (along with this blog post) my final stab at summarizing the lessons of the ACA case.

I draw three big lessons from the case. The last of those, which I summarize only briefly, is the point that I made at some length here on Dorf on Law a few weeks ago: For all the talk about liberty in the ACA case, all nine justices ended up agreeing that Congress has the power under the Constitution to give people the choice of buying broccoli or paying money to the government. That is a rather major point, in my view, but there is nothing further that I wish to add to that argument here.

The second lesson that I drew from the ACA decision is that Commerce Clause jurisprudence is about to undergo a very big change, but we now know much less about what that change might look like than we did before June 28. To expand on that briefly, we now have five Justices who were already known to be hostile to the Wickard approach to the Commerce Clause, but who have as a group (especially under the current Chief Justice) been reluctant to be open about overturning established precedent.

What the Commerce Clause holding/dicta (it really does not matter what we call it, realistically) gives those Justices is a path to doing some serious damage to existing doctrine. Even better, from their standpoint, they can use it to do nearly anything they want to do. I realize that this is, to a large degree, always true of the Supreme Court, but here they have given themselves the perfect blank slate onto which they can write anything they want. Existing laws can be challenged for violating the newly created activity/inactivity distinction, with only the majority's unknown appetite for radical change limiting what it might do. Future Congress's might try to frame laws as regulating activity, but the distinction is so meaningless that the Court can simply refuse to accept Congress's frame. ("It matters not what Congress calls this imposition on people's liberty. In fact, this statute would force people to do that which they would prefer not to do. This, the Constitution does not tolerate.")

All of which means that we now have absolutely no way to know where the Roberts Five is going to take the Commerce Clause -- but we know that they are getting ready to go somewhere with it.

(Note also that we have no idea what the balancing test under the taxing power will look like, either. Recall that Roberts announced in his controlling ACA opinion that there are some limits on the taxing power, having something to do with a tax (whether called a tax or not) being so large as to give a person no meaningful choice, and so on. Even by the standards of Constitutional jurisprudence, that is going to be a mess. For a political movement that vilifies lawyers and lawsuits, they certainly delivered a huge gift to those who make a living from taking cases all the way to the Supreme Court.)

Which brings us, indirectly, to the central point in my Jurist piece. The path of the ACA case should be a warning to all that Supreme Court doctrine can not only change in unpredictable ways, but that the speed with which the Court can veer in a completely new direction has radically accelerated.

To make this point, I compare the ACA case to D.C. v. Heller, the case in which the Court announced that the Second Amendment contains an individual right to own a gun for purposes of protecting one's home. (Note, as an aside, that we are still waiting to see whether the Court will continue to limit its holding under Heller to the four corners of that decision, or whether they are waiting to announce a further expansion of the individual rights view.) This comparison occurred to me several months ago, as I considered what the Court would have to do to adopt the activity/inactivity distinction in the ACA case.

It is not an exaggeration to say that the winning position in Heller was laughable pre-Heller, just as we saw legal scholars mocking the activity/inactivity decision pre-ACA. Even in the days between the oral argument and the release of the Court's ACA decision, it was still plausible to imagine that the Obama position would win 8-1, given the votes of the Justices on previous cases.

Heller and the ACA case are, therefore, similar in representing radical breaks with existing precedent. They differ, however, in at least two ways. First (a point which I do not make in my Jurist piece), the winning position in Heller is at least internally coherent. That is, unlike the activity/inactivity distinction, the individual rights view can at least be the basis for a knowable jurisprudence. The reading of U.S. history behind it is weak (as Justice Souter argued persuasively), but once one has bought into that view of history, one can come away from Heller without being completely adrift about what comes next. (As I noted above, the Court could still expand on its ruling, but to do so, they will have to rewrite yet more history, because so far, they have relied on home protection as their hook.)

The second difference between the two cases is, again, sheer speed. I recall reading an article in Harper's or The Atlantic about a dozen years ago, in which an author who believed in the individual rights view argued that his side had engaged in a debate with the defenders of the militia view, and the individual rights view had triumphed. Not only had it triumphed, he wrote, but everyone now agreed that it had triumphed. He claimed, in fact, that when right-wing think-tanks (with which he was affiliated) tried to organize debates about the Second Amendment, they could not even find any remaining liberals to defend the then-binding view.

As a description of reality, of course, that claim was preposterous. If it was based on anything other than wishful thinking, it was a triumphalist response to the defection of a few prominent liberals to the individual rights view. There were still plenty of people left who defended the militia view, but why let that ruin a good story?

To the immediate point, however, consider what that story tells us about the path to Heller. For several decades, a group of scholars used the resources available from the right-wing think-tanks in DC to build from the ground up a case to reverse Supreme Court jurisprudence regarding the Second Amendment. They held conferences, they engaged with their opponents, and they used their resources to fund research supporting their views. Some of that was a bit sleazy, in being essentially a matter of paying scholars to take specific positions, but it was within the broad bounds of normal practice. (It is, after all, not easy to figure out who is taking money to write a paper that he would otherwise be happy to write, as opposed to someone who prostitutes himself intellectually for a payday.)

In the end, it was at least true that the opponents of the individual rights view were engaged with the debate. A few had defected, and the rest thought generally at least that it was not utterly crazy to take the individual rights position. This simply did not happen with the ACA. Going forward, of course, people will earnestly try to write papers analyzing what the activity/inactivity distinction could possibly mean. Had five Justices not embraced the position, however, the purveyors of the activity/inactivity distinction would have continued to be mocked (or, at the very least, easily dismissed).

And this is what I find most worrisome about the post-ACA world. Whereas it used to be possible to see the gears grinding away on a long-term campaign to alter Constitutional jurisprudence, we have just seen the convergence of Koch-type money with Supreme Court outcomes. Within two years, movement conservatives turned the Commerce Clause into a big question mark. Those of us who tend toward a legal realist view have never been naive about the political nature of the Court, but the pure audacity and rapid success of what we have just seen is beyond anything that I have previously imagined possible. Even worse, this might be just the beginning.


Michael C. Dorf said...

Really insightful analysis. For a good documentation of how the right organized over many years to get the result in Heller, see Reva Siegel's discussion of the case in the Harvard Law Review. On the same general phenomenon, Jack Balkin observed--in commentary shortly after Bush v. Gore--how positions that seem "off the wall" can, in effect, become the wall. But neither Siegel nor Balkin nor any of the rest of us anticipated the speed with which this could happen.

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