Balkinization: The Next Preemptive Opinion?

The Next Preemptive Opinion?

Gerard N. Magliocca

One important issue in my scholarship is the place of "preemptive opinions" in constitutional law. A preemptive opinion is one in which the Supreme Court invalidates the major initiative or policy plank of the opposition party immediately preceding or following an electoral realignment. These decisions that have three characteristics: (1) they reach out to decide unnecessary constitutional questions (so that they can make a political statement); (2) they decide those unnecessary issues in a extraordinarily broad manner (so that they can make a political statement and create powerful doctrine); and (3) they develop some new understanding of liberty or equality to buttress their arguments (as precedent is usually strongly against the reasoning). The three leading examples of this phenomenon are Worcester v. Georgia (John Marshall vs. Jacksonian Democracy), Dred Scott (Roger Taney vs. the Republican Party), and Pollock v. Farmers' Loan & Trust (Melville Fuller vs. William Jennings Bryan). The New Deal (The Four Horsemen vs. FDR) also saw this kind of unorthodox action, though I'm not familiar enough with those cases to single one out as the best representative.

Will the individual mandate be the vehicle for the next preemptive opinion? Well, a few things point to yes. First, the health care reform is obviously the signature law of the Obama Administration. Second, there is a plausible argument that the 2008 election was a realignment, so we are in the crucial window. Third, the courts that have considered the statute thus far have blown past the various ways that they could use to decline to decide the merits now. Fourth, yesterday's District Court opinion invalidated the entire statute (not just the individual mandate), which is an exceptionally broad remedy even though the reasoning did not call into question other federal laws on the books. Finally, the critical decisions have articulated an inchoate liberty interest against the forced purchase of goods (compulsory commerce) that is new to our jurisprudence.

None of this, though, answers the question of whether the Justices will issue a preemptive opinion here. It is not possible to predict whether an opinion will be broad or narrow, for instance, when different choices are available. All we can say is that there is a real chance that this kind of decision will come in the near future, and thus more attention must be given to the (admittedly few) precedents in this category. They will tell us more than the leading Commerce Clause cases about what the Court will do next year or in 2013.

Posted 8:08 PM by Gerard N. Magliocca [link]