Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
It will be easy for Justice Anthony Kennedy to write the Court's opinion upholding the Affordable Care Act. He's already (co)written it -- or at least the stare decisis part. Here's an excerpt:
Liberty finds no refuge in a jurisprudence of doubt. After considering the fundamental constitutional questions resolved by Wickard v. Filburn Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade Wickard should be retained and once again reaffirmed.
The text of the Commerce Clause itself does not mark the outer limits of the scope of Congress’s delegated powers. The inescapable fact is that adjudication of commerce power cases may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule.
While we appreciate the weight of the arguments made on behalf of the State in the case before us, arguments which in their ultimate formulation conclude that Wickard should be overruled, the reservations any of us may have in reaffirming the central holding of Wickard are outweighed by the explication of the commerce power we have given combined with the force of stare decisis. We turn now to that doctrine.
Continued below the fold.
The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. With Cardozo, we recognize that no judicial system could do society's work if it eyed each issue afresh in every case that raised it. See B. Cardozo, The Nature of the Judicial Process 149 (1921). Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable. See Powell, Stare Decisis and Judicial Restraint, 1991 Journal of Supreme Court History 13, 16. At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed.
Even when the decision to overrule a prior case is not, as in the rare, latter instance, virtually foreordained, it is common wisdom that the rule of stare decisis is not an "inexorable command," and certainly it is not such in every constitutional case, see Burnet v. Coronado Oil Gas Co., 285 U.S. 393, 405-411 (1932) (Brandeis, J., dissenting). See also Payne v. Tennessee, 501 U. S. ____, ____ (1991) (slip op., at ___) (Souter, J., joined by Kennedy, J., concurring); Arizona v. Rumsey, 467 U.S. 203, 212 (1984). Rather, when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proved to be intolerable simply in defying practical workability, Swift & Co. v. Wickham, 382 U.S. 111, 116 (1965); whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, e. g., United States v. Title Ins. & Trust Co., 265 U.S. 472, 486 (1924); whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, see Patterson v. McLean Credit Union, 491 U.S. 164, 173-174 (1989); or whether facts have so changed or come to be seen so differently, as to have robbed the old rule of significant application or justification, e. g., Burnet, supra, at 412 (Brandeis, J., dissenting).
So in this case we may inquire whether Wickard’s central rule has been found unworkable; whether the rule's articulation of federal power could be removed without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by the rule in question; whether the law's growth in the intervening years has left Wickard’s central rule a doctrinal anachronism discounted by society; and whether Wickard’s premises of fact have so far changed in the ensuing decades as to render its central holding somehow irrelevant or unjustifiable in dealing with the issue it addressed.
Although Wickard has engendered opposition, it has in no sense proven "unworkable," see Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 546 (1985). Although the need for judicial review of the substantiality of impacts on interstate commerce will remain as a consequence of today's decision, the required determinations fall within judicial competence.
The inquiry into reliance counts the cost of a rule's repudiation as it would fall on those who have relied reasonably on the rule's continued application....To eliminate the issue of reliance that easily, however, one would need to limit cognizable reliance to specific instances of federal regulation. But to do this would be simply to refuse to face the fact that for seven decades of economic and social developments, people have organized their activities and made choices that define their views of themselves and their places in society, in reliance on the federal programs based on Wickard’s vision of the commerce power. The ability of those relying on federal labor law, federal civil rights statutes, and other federal programs to participate equally in the economic and social life of the Nation has been facilitated by their ability to draw upon the federal regulations that would be at risk if Wickard were abandoned. The Constitution serves human values, and while the effect of reliance on Wickard cannot be exactly measured, neither can the certain cost of overruling Wickard for people who have ordered their thinking and living around that case be dismissed.
No evolution of legal principle has left Wickard’s doctrinal footings weaker than they were in 1942. No development of constitutional law since the case was decided has implicitly or explicitly left Wickard behind as a mere survivor of obsolete constitutional thinking.
The sum of the precedential inquiry to this point show Wickard’s underpinnings unweakened in any way affecting its central holding. While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Wickard’s concept of federal regulatory power; no erosion of principle going to federalism or congressional power has left Wickard’s central holding a doctrinal remnant; and Wickard portends no developments at odds with other precedent for the analysis of the commerce power. Within the bounds of normal stare decisis analysis, then, and subject to the considerations on which it customarily turns, the stronger argument is for affirming Wickard’s central holding, with whatever degree of personal reluctance any of us may have, not for overruling it.