What's the Conservative Case for Upholding ObamaCare?


At the Volokh Conspiracy, George Washington law professor Orin Kerr has a very interesting post explaining why at least some conservatives would want the Supreme Court to uphold the Patient Protection and Affordable Care Act's individual mandate. As Kerr notes of his own legal views, while he does believe that "Supreme Court doctrine has erroneously permitted the federal government to become too big and play too intrusive a role in American society," he is also "a Burkean conservative" who accepts the stabilizing role that precedent plays in our judicial system. Therefore he's not at all convinced that the legal challenge to the health care law should succeed. Here's a snippet of his argument:

I'm acutely aware of the Supreme Court's long struggle to identify principled and workable limits on the scope of the Commerce Clause. History has shown that it's surprisingly hard to do that, and that unprincipled or unstable lines don't last and just destabilize the law for a short window before being rejected. My comfort with the Court striking down the mandate therefore varies considerably based on how the Court could do it. Let's imagine, hypothetically, that the Supreme Court strikes down the mandate but does not identify any genuinely principled or workable doctrine to justify it. The Court's decision merely reopens the hornet's nest of line-drawing problems that the Court has long struggled with in the Commerce Clause setting, with the significant likelihood that in 20 years the Court will abandon its reasoning. In that case, the Burkean conservative part of me would be dismayed by the Court's decision. Sure, the federalism guy side of me would be happy, but it would be outweighed by my Burkean objections.

Conservative legal activists have been carrying on versions of this debate for a long time. On the one hand there's the longstanding conservative case for judicial restraint and for letting democratic majorities have their way. That view says that the Supreme Court should defer to Congress and let President Obama's signature legislative achievement stand (future lawmakers are of course free to repeal the law under this view). On the other hand, there are those—including Justice Clarence Thomas—who argue that the text of the Constitution (as they understand it) should always trump precedent, no matter what sort of destabilizing effects that may have on the legal system.

Chief Justice John Roberts arguably has a foot in each camp. He's described himself as a believer in "judicial modesty," an approach that gives heavy weight to both precedent and consensus. Yet as he argued in his Citizens United concurrence, sometimes precedents do deserve to die:

… if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent's validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent's underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.

Setting aside the merits of these various approaches for the moment, what all of this tells us is that a solid Supreme Court majority against the health care law is no sure thing.