It is emphatically the province and duty of the Judicial Department to say what the law is. - Marbury v. Madison
When the Supreme Court of the United States enunciated those words in 1803, it was committing to being part of our political process. For what is politics but an exercise in deciding the laws which will govern us? By deciding "what the law is," the Supreme Court is engaged in political action. The retort to this is that the Supreme Court is merely an instrument for enforcing the laws that have been enacted in the political process, acting in the wake of the political process. The history of the Court demonstrates this to be a facile formalism at best, and more properly just wrong.
In next year's term of the Supreme Court, it is likely that the Affordable Care Act will come before the Court for a decision on whether the individual mandate provisions of the law are a constitutional exercise of Congressional power. Political opponents of the president are arguing that the mandate provision exceeds the powers granted to the Congress by the Commerce Clause and the adjacent power derived from the Necessary and Proper Clause. It is my view that jurisprudence on this issue is quite clear and that were the Court to merely follow the law and the existing precedent, then the case will be an easy one—of course it is constitutional. In 2010, the Court decided US v. Comstock, upholding a federal civil commitment statute as a constitutional exercise of Congressional power:
The Necessary and Proper Clause grants Congress broad authority to enact federal legislation. Nearly 200 years ago, this Court stated that the Federal “[G]overnment is acknowledged by all to be one of enumerated powers,” McCulloch, 4 Wheat., at 405, which means that “[e]very law enacted by Congress must be based on one or more of” those powers, United States v. Morrison , 529 U. S. 598, 607 (2000) . But, at the same time, “a government, entrusted with such” powers “must also be entrusted with ample means for their execution.” McCulloch, 4 Wheat., at 408. Accordingly, the Necessary and Proper Clause makes clear that the Constitution’s grants of specific federal legislative authority are accompanied by broad power to enact laws that are “convenient, or useful” or “conducive” to the authority’s “beneficial exercise.” Id., at 413, 418; see also id., at 421 (“[Congress can] legislate on that vast mass of incidental powers which must be involved in the constitution …”). Chief Justice Marshall emphasized that the word “necessary” does not mean “absolutely necessary.” Id., at 413–415 (emphasis deleted); Jinks v. Richland County , 538 U. S. 456, 462 (2003) (“[W]e long ago rejected the view that the Necessary and Proper Clause demands that an Act of Congress be ‘ “ absolutely necessary” ’ to the exercise of an enumerated power”). In language that has come to define the scope of the Necessary and Proper Clause, he wrote:“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch, supra, at 421.
[. . .] The Framers demonstrated considerable foresight in drafting a Constitution capable of such resilience through time. As Chief Justice Marshall observed nearly 200 years ago, the Necessary and Proper Clause is part of “a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” McCulloch , 4 Wheat., at 415 (emphasis deleted).
We take these five considerations together. They include: (1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute’s enactment in light of the Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute’s accommodation of state interests, and (5) the statute’s narrow scope. Taken together, these considerations lead us to conclude that the statute is a “necessary and proper” means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others. The Constitution consequently authorizes Congress to enact the statute.
If precedent means anything, the mandate should be held constitutional. But the Court, like all political actors, does not always concern itself with precedent. To be sure, it will seek ways to not overturn precedent formally, but will do so through intellectual contortion. In any event, the larger point is that the Supreme Court is not a "neutral arbiter" of what the political process has delivered, but rather a part of the process itself.
The role of the Court as a political actor is neither new nor controversial. By necessity it must play such a role. In Federalist 78, Alexander Hamilton wrote:
The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. [. . .] This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. [. . .] It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.
And indeed, as stated earlier, the history of the Supreme Court has demonstrated that it will act in manners that have profound effects on the political questions of the day and beyond. Understanding these actions requires leaving behind the ivory tower notions of a blindfolded justice—there is no such creature. Judges are people, with views, preferences and life experiences. Even the most honest and committed jurist cannot escape the wages of their own views.
Once we can escape the ivory tower view, we are in a better position to understand the actions of, not only the Supreme Court, but all courts. Yes, I am talking about Legal Realism:
The logical critique argued that legal concepts were not a constraining force to law. Here, Realists relied on Wesley Hohfeld, who argued that legal concepts inappropriately treated various discrete legal relationships as unitary; on Judge Benjamin Cardozo, who asserted that there was more than one method for deciding a case; on Cook, who claimed that legal rules “hunt in pairs”; and on Llewellyn, who identified a great range of acceptable techniques for dealing with a legal precedent. These observations suggested that legal concepts did not produce necessary results, but rather permitted judges a choice of results. [Emphasis added.]
A choice of results. No doubt. On the flip, I'll discuss the history of the Supreme Court's "choice of results."
The powers granted to the Congress were a political dispute at the heart of the debate between the Federalists and the anti-Federalists regarding the ratification of the Constitution. The dispute continued after the ratification. One of the early battle regarded the federal government's power to create a national bank. Hamilton and Jefferson took opposing views, and Hamilton's Letter on the First Bank won the day, for the moment.
But the battle continued. Jefferson won the presidency in 1800, and ostensibly his view of a limited federal power would hold. In his book, The Rise Of American Democracy, Sean Wilentz described Chief Justice John Marshall as "the preeminent Federalist in the country." And so he was and would remain for decades—defending the Federalist view of the Constitution from the Supreme Court.
The Jeffersonian party held the presidency for the next 24 years. But John Marshall remained the Chief Justice of the Supreme Court. Thus, on Constitutional questions, the Federalist view continued to win political battles.
Was the Court acting politically in these cases, that reverberate to this day? Of course. The Court pronounced the Federalist doctrine as the final word (for the moment at least) of the Constitution. And that John Marshall's Court made this declaration can hardly be seen as a surprise. I think he was right. But I think Marshall would have led this ruling even if he was wrong. Legal Realism.
Let's move ahead to 1857. The slavery issue divided the country. In his inaugural address, newly minted President James Buchanan said of the slavery issue:
[I]t is a judicial question, which legitimately belongs to the Supreme Court of the United States, before whom it is now pending, and will, it is understood, be speedily and finally settled.
Well, it was a judicial question, but it was also a political question. And, in Dred Scott v. Sanford, the Supreme Court rendered a decision, but that decision did not settle the slavery question. It did contribute mightily to the inception of a Civil War.
It was no accident that slavery proponent Buchanan urged accepting the Supreme Court decision as the final word on the issue. He knew that Taney was seeking to render a decision that would be as pro-slavery as possible.
In Wilentz's book, he describes the "improper collusion in the matter of Dred Scott" between the Taney Court and the incoming Buchanan administration. Indeed, Wilentz relates the existence of an 1850 decision, Strader v. Graham, that seemed to dispose of the case. In Strader, Chief Justice Taney wrote for the Court:
Every state has an undoubted right to determine the status, or domestic and social condition of the persons domiciled within its territory except insofar as the powers of the states in this respect are restrained, or duties and obligations imposed upon them, by the Constitution of the United States. There is nothing in the Constitution of the United States that can in any degree control the law of Kentucky upon this subject.
In fact, the early deliberations of the Court led to that precise conclusion. Taney had other aspirations, however. And everyone knew what they were. Taney did not disappoint. A Civil War ensued that actually did conclusively settle the slavery question. (More on the Dred Scott case.)
After the Civil War, during the Reconstruction Era, the Supreme Court retained an active political role. The most important decision of the era was The Slaughterhouse Cases. This decision was the first Court interpretation of the 14th Amendment. The case involved a Louisiana statute that granted an exclusive franchise for butchering to a single corporation. The case was challenged by various New Orleans butcheries, who argued that the new law denied them equal protection of the law and deprived them of privileges and immunities as citizens. Ironically, the lawyer arguing these positions before the Supreme Court was a former Court Justice who resigned due to his loyalty to the Confederacy, John A. Campbell.
The Slaughterhouse Court chose an interpretation of the Privileges and Immunities clause that narrowed to virtual nonexistence:
Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.
What does the Legal Realist say about this course? Simply this: the Court majority was disturbed by the serious health problems caused by the slaughterhouse situation in New Orleans and wrote an opinion to support a result upholding the Louisiana statute. But what of the means? It was sloppy work. Justice Field's dissent makes a cogent point:
With this power of the State and its legitimate exercise I shall not differ from the majority of the court. But under the pretence of prescribing a police regulation, the State cannot be permitted to encroach upon any of the just rights of the citizen, which the Constitution intended to secure against abridgment.
The question presented is, therefore, one of the gravest importance not merely to the parties here, but to the whole country. It is nothing less than the question whether the recent amendments to the federal Constitution protect the citizens of the United States against the deprivation of their common rights by state legislation. In my judgment, the Fourteenth Amendment does afford such protection, and was so intended by the Congress which framed and the states which adopted it.
Justice Field rightly recognized that the majority opinion took a course that eviscerated the Privileges and Immunities Clause. And for no good reason. Sometimes this is the fruit of Legal Realism coupled with the Law of Unintended Consequences.
Travel forward with me then to the inevitable reaction to the gutting of the Privileges and Immunities Clause, Lochner v. New York:
The statute necessarily interferes with the right of contract between the employer and employes concerning the number of hours in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution. Allgeyer v. Louisiana, 165 U.S. 578. Under that provision, no State can deprive any person of life, liberty or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment unless there are circumstances which exclude the right. There are, however, certain powers, existing in the sovereignty of each State in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the State in the exercise of those powers, and with such conditions the Fourteenth Amendment was not designed to interfere. Mugler v. Kansas, 123 U.S. 623; In re Kemmler, 136 U.S. 436; Crowley v. Christensen, 137 U.S. 86; In re Converse, 137 U.S. 624.
The economic "liberty" interest in the due process clause of the Fourteenth Amendment becomes the vehicle of choice to resist government regulation. Justice Holmes' famous dissent elaborates on the political character of the decision:
This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.
This political dispute in the Supreme Court continued to play out until 1937. Then 301 US Reports changed the Commerce Clause-related constitutional jurisprudence until recent times. Justice Souter's dissent in U.S. v. Morrison recounts that history and strikes a warning for the future.:
Chief Justice Marshall's seminal opinion in Gibbons v. Ogden, supra, at 193-194, construed the commerce power from the start with "a breadth never yet exceeded," Wickard v. Filburn, 317 U. S., at 120. In particular, it is worth noting, the Court in Wickard did not regard its holding as exceeding the scope of Chief Justice Marshall's view of interstate commerce; Wickard applied an aggregate effects test to ostensibly domestic, noncommercial farming consistently with Chief Justice Marshall's indication that the commerce power may be understood by its exclusion of subjects, among others, "which do not affect other States," Gibbons, 9 Wheat., at 195. This plenary view of the power has either prevailed or been acknowledged by this Court at every stage of our jurisprudence. See, e.g., id., at 197; Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96, 99-100 (1888); Lottery Case, 188 U. S. 321, 353 (1903); Minnesota Rate Cases, 230 U. S. 352, 398 (1913); United States v. California, 297 U. S. 175, 185 (1936); United States v. Darby, 312 U. S. 100, 115 (1941); Heart of Atlanta Motel, Inc. v. United States, 379 U. S., at 255; Hodel v. Indiana, 452 U. S., at 324. And it was this understanding, free of categorical qualifications, that prevailed in the period after 1937 through Lopez, as summed up by Justice Harlan: " `Of course, the mere fact that Congress has said when particular activity shall be deemed to affect commerce does not preclude further examination by this Court. But where we find that the legislators ... have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.' " Maryland v. Wirtz, 392 U. S. 183, 190 (1968) (quoting Katzenbach v. McClung, 379 U. S., at 303-304).
Justice Harlan spoke with the benefit of hindsight, for he had seen the result of rejecting the plenary view, and today's attempt to distinguish between primary activities affecting commerce in terms of the relatively commercial or noncommercial character of the primary conduct proscribed comes with the pedigree of near-tragedy that I outlined in United States v. Lopez, supra, at 603 (dissenting opinion). In the half century following the modern activation of the commerce power with passage of the Interstate Commerce Act in 1887, this Court from time to time created categorical enclaves beyond congressional reach by declaring such activities as "mining," "production," "manufacturing," and union membership to be outside the definition of "commerce" and by limiting application of the effects test to "direct" rather than "indirect" commercial consequences. See, e.g., United States v. E. C. Knight Co., 156 U. S. 1 (1895) (narrowly construing the Sherman Antitrust Act in light of the distinction between "commerce" and "manufacture"); In re Heff, 197 U. S. 488, 505-506 (1905) (stating that Congress could not regulate the intrastate sale of liquor); The Employers' Liability Cases, 207 U. S. 463, 495-496 (1908) (invalidating law governing tort liability for common carriers operating in interstate commerce because the effects on commerce were indirect); Adair v. United States, 208 U. S. 161 (1908) (holding that labor union membership fell outside "commerce"); Hammer v. Dagenhart, 247 U. S. 251 (1918) (invalidating law prohibiting interstate shipment of goods manufactured with child labor as a regulation of "manufacture"); A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 545-548 (1935) (invalidating regulation of activities that only "indirectly" affected commerce); Railroad Retirement Bd. v. Alton R. Co., 295 U. S. 330, 368-369 (1935) (invalidating pension law for railroad workers on the grounds that conditions of employment were only indirectly linked to commerce); Carter v. Carter Coal Co., 298 U. S. 238, 303-304 (1936) (holding that regulation of unfair labor practices in mining regulated "production," not "commerce").
Since adherence to these formalistically contrived confines of commerce power in large measure provoked the judicial crisis of 1937, one might reasonably have doubted that members of this Court would ever again toy with a return to the days before NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937), which brought the earlier and nearly disastrous experiment to an end. And yet today's decision can only be seen as a step toward recapturing the prior mistakes. Its revival of a distinction between commercial and noncommercial conduct is at odds with Wickard, which repudiated that analysis, and the enquiry into commercial purpose, first intimated by the Lopez concurrence, see Lopez, supra, at 580 (opinion of Kennedy, J.), is cousin to the intent-based analysis employed in Hammer, supra, at 271-272 but rejected for Commerce Clause purposes in Heart of Atlanta, supra, at 257 and Darby, supra, at 115.
Justice Souter then provides the Legal Realists' explanation for this behavior:
Why is the majority tempted to reject the lesson so painfully learned in 1937? An answer emerges from contrasting Wickard with one of the predecessor cases it superseded. It was obvious in Wickard that growing wheat for consumption right on the farm was not "commerce" in the common vocabulary,13 but that did not matter constitutionally so long as the aggregated activity of domestic wheat growing affected commerce substantially. Just a few years before Wickard, however, it had certainly been no less obvious that "mining" practices could substantially affect commerce, even though Carter Coal Co., supra, had held mining regulation beyond the national commerce power. When we try to fathom the difference between the two cases, it is clear that they did not go in different directions because the Carter Coal Court could not understand a causal connection that the Wickard Court could grasp; the difference, rather, turned on the fact that the Court in Carter Coal had a reason for trying to maintain its categorical, formalistic distinction, while that reason had been abandoned by the time Wickard was decided. The reason was laissez-faire economics, the point of which was to keep government interference to a minimum. See Lopez, supra, at 605-606 (Souter, J., dissenting). The Court in Carter Coal was still trying to create a laissez-faire world out of the 20th-century economy, and formalistic commercial distinctions were thought to be useful instruments in achieving that object. The Court in Wickard knew it could not do any such thing and in the aftermath of the New Deal had long since stopped attempting the impossible. Without the animating economic theory, there was no point in contriving formalisms in a war with Chief Justice Marshall's conception of the commerce power.
If we now ask why the formalistic economic/noneconomic distinction might matter today, after its rejection in Wickard, the answer is not that the majority fails to see causal connections in an integrated economic world. The answer is that in the minds of the majority there is a new animating theory that makes categorical formalism seem useful again. Just as the old formalism had value in the service of an economic conception, the new one is useful in serving a conception of federalism. It is the instrument by which assertions of national power are to be limited in favor of preserving a supposedly discernible, proper sphere of state autonomy to legislate or refrain from legislating as the individual states see fit. The legitimacy of the Court's current emphasis on the noncommercial nature of regulated activity, then, does not turn on any logic serving the text of the Commerce Clause or on the realism of the majority's view of the national economy. The essential issue is rather the strength of the majority's claim to have a constitutional warrant for its current conception of a federal relationship enforceable by this Court through limits on otherwise plenary commerce power. This conception is the subject of the majority's second categorical discount applied today to the facts bearing on the substantial effects test. [Emphasis added.]
So what can a Legal Realist tell us about what to expect from this Court on the Affordable Care Act? Here are issues to consider: (1) since Lopez and Morrison, the Court has issued Raich and Comstock, both providing expansive views of the Congress' Commerce Clause and Necessary and Proper Clause power; (2) the case will be decided in an election year—what will be the political effect of a decision?; (3) the issues do not appear to touch the federalism concern dear to the hearts of the conservative members of the Court; (4) there is no "narrow" decision for the Court here if it wishes to strike down the mandate (to leave ACA standing without the mandate is a terrible result for insurance companies, something the conservative majority will never countenance), it is all or nothing. That would be, in the parlance, a big fucking deal'; and (5) there is a punt option available; since the mandate does not become operative until 2014, the issue may not yet be "ripe" for decision. Issues like ripeness, justiciability and standing are always susceptible to "whatever the court wants to do" analysis. It is silly to even look at cases on these issues in my view.
One Legal Realist's opinion - since the political consequences of a decision on ACA are uncertain, I expect a punt from the Court until after the election.