Dissents: The constitutionality of the individual mandate
Bill Daley, a visiting associate professor at Notre Dame Law School, e-mailed this reply to my earlier comments on the constitutionality of the individual mandate. I'll respond in a subsequent post. As an aside, I try to read the comments, but it's easier for me to keep track of e-mail, so if you have something you want me to see personally, e-mail is often better.
You have written more than once now that the "abstract constitutionality" of the Health Care Bill is not what's at issue, just the party affiliation of the judge deciding the case. I don't really get what that's supposed to mean. Is it your view that when judges have persistent disagreement about issue x, the arguments are ipso facto not about issue x but about something else?
Take, for instance, the area of sentencing law in criminal cases. A series of cases around sentencing have for years been decided in a "pro-defendant" (we might say "liberal") direction since Justice Thomas joined Antonin Scalia, Ruth Bader Ginsberg, John Paul Stevens and David Souter. Leading the dissenters has been Steven Breyer, as the cases deal with the constitutionality (among other things) of the federal sentencing guidelines (of which Breyer was a leading proponent). Now, these cases were pretty predictable, but the predictability did not map onto partisan affiliation but the methodological preference (or not) for formalism among the justices. The formalists were winning. It remains to be seen what will happen with two new Democratic appointees on the court. But it will be their methodology in such cases, not their party affiliation, that will determine the outcome. Does this mean the cases are not "really" about the constitution, as you think with health care? Or are the disagreements about the constitution unless the divide is neatly partisan?
The Supreme Court justices agree by 7-2 or better some 90% of the time or so, as I recall. There are a narrow band of high-profile cases in which the disagreements are real and persistent and frequently predictable along partisan lines. That should not be surprising, and nor should it lead to the cynical view that what's going on is just politics by other means. The methodological differences are real and in good faith, even if they've largely been sorted out by political groupings (as is inevitable, one supposes, in a system of presidential appointments).
For what it's worth, conservatives differ pretty widely on the question of the health care bill, mostly depending upon how faithful to some original vision of the constitution they think the Supreme Court ought to be (of course, one can also differ on that original vision), but also depending upon their reading of the current doctrine. I hold, as do most folks that I know, that this law is well within the ambit of what we've approved of, and highly unlikely to be questioned by this Supreme Court except perhaps by Justice Thomas (who is the most willing to throw precedent overboard when he's convinced it gets a fundamental constitutional point wrong). But other conservatives think we misread current precedent, or that the issue is just different enough to warrant a fresh look at Commerce Clause jurisprudence without disturbing many precedents -- they are distinguishable. But these are good-faith methodological arguments among conservatives (as the sentencing commission arguments were among both liberals and conservatives).
I do not think it serves you well to keep writing what seems just an empty and cynical statement that when cases are predictable along partisan lines then it's not about the law at all. It may be true that in some categories of cases partisan politics is a helpful predictor of results, but as a matter of describing what both the liberal and conservative (the labels, as the sentencing cases show, are hardly perfect) are actually doing in deciding the cases it does their work and our system an injustice.
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