Decision Making at the Supreme Court, Sans Politics

February 11, 2014

The U.S. Supreme Court announced its decision in June 2012 in NFIB v. Sebelius, the Patient Protection and Affordable Care Act (ACA), aka Obamacare, case. It is a case for the ages, but it’s also a case that provides a platform for examining how the Court decides matters.

First, courts at all levels value stare decisis, Latin for “stand by the decision.” Underlying stare decisis is the notion that we are a nation of laws; thus, legal principles, once decided, should be applied consistently going forward, without regard for politics, the identity of the parties, etc. Further, we need and expect predictability from the law, for we want to know with a reasonable degree of certainty what is and is not lawful conduct.

How well do courts adhere to the principle of stare decisis? That depends on the court and, often, on who’s answering the question.

Lower courts mind stare decisis pretty strictly. Judges are duty-bound to follow Supreme Court precedents and they do, mostly. An excellent example arises from the ACA matter. Judges Laurence Silberman and Jeffrey Sutton are members of the D.C. Circuit and the 6th Circuit Courts of Appeals, respectively. They are distinguished conservative judges; nevertheless, both judges voted to uphold the constitutionality of the health care law on Commerce Clause grounds, relying on a 70-year-old Supreme Court precedent, and more recent cases. (Judge Silberman wrote the opinion for the D.C. Circuit.) Whatever these judges may have believed about the ACA or the Commerce Clause, they applied the law to the facts—what judges do and are supposed to do—and upheld the ACA.

The Supreme Court upheld the constitutionality of the ACA, but a five-justice majority said the ACA violated the Commerce Clause, despite lower court decisions upholding the law. Did this majority have the power to follow a different path? Absolutely!  In doing so, was it ignoring stare decisis?  Maybe! Supreme Court Justice Antonin Scalia, in his book that was published days before the ACA decision was announced, noted a personal change in his view of the very Commerce Clause issue to be decided, observing that sometimes “wisdom has come late.” On the other hand, the more conservative justices argued that invalidating the ACA was consistent with prior interpretations of the Commerce Clause because the ACA regulated inaction, i.e., not buying insurance.

Of course, some legal principles many people readily accept have depended on the Court’s willingness to revisit and reject prior opinions. In 1896 in Plessy v. Ferguson “separate but equal” schools became the law of the land. In 1954 in Brown v. Board of Education the Court said “no more.” In 1883 in Pace v. Alabama the Court upheld a state law barring interracial marriages, a position it rejected in Loving v. Virginia in 1967. In 1986 the Court upheld anti-sodomy laws in Bowers v. Hardwick; seventeen years later, in Lawrence v. Texas, the Court decided these laws violated the Constitution.

Stare decisis gets tossed around often in discussions about Court decisions. Most everyone supports the notion … until it mandates an outcome with which he or she disagrees!

A second principle associated with Court decisions relates to deference to Congress. The Court decides whether laws—which are made by Congress—are constitutional.  In doing so it starts from the premise that statutes are constitutional and requires that any reasonable construction of the statute must be applied in furtherance of upholding the statute. This principle arises from the Court’s policies of, whenever possible, avoiding constitutional issues and upholding the Constitution.

Much has been written about Chief Justice John Roberts’ rationale for finding the individual mandate lawful under the taxing power in the Constitution. The underlying principle he adopted—that the Court finds laws constitutional when it can, even when certain a word choice may suggest a contrary result—is very much a part of the way in which the Court claims it decides cases. That the Court pays homage to this principle may be best evidenced by the fact that the Chief Justice cited to no authorities to support the notion that laws must be upheld if, under any plausible reading, they do not violate the Constitution. [Stay tuned in coming weeks for comments about cases in which the Court ignores what Congress has said.]

Finally, the Court tries to rely on plain language in resolving issues of meaning and intent. However, as the Chief Justice’s opinion reflects, labels do not necessarily resolve matters. Thus, relying on several precedents dating back as far as 90 years, the Chief Justice held that the taxing power under the Constitution validates the individual mandate, despite the “penalty” label associated with it.

The political analysis of the Court’s opinion focused heavily on the viewpoints of the several justices, and on the outcome. That is fine, for the issues the Court was charged with resolving are political issues. There is, however, a methodology associated with the Court’s decision-making process, and the written opinions that support them. While we can all argue about motives, etc., the methodology shows itself in NFIB v. Sebelius.

(Note:  An earlier version of this piece was published first in Caveat, the Mesch, Clark & Rothschild, P.C. newsletter I co-edit. For articles from the MCR archives, click here:  MCR Articles.)



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