Tuesday, July 03, 2012

A "Precedent" Doesn't Mean Anything on the Day It's Decided

Mark Tushnet

A judicial decision resolves a case by invoking a rule that supports the conclusion the court reaches in awarding victory and defeat. The rule's meaning is, at the moment of decision, only that it covers this specific case. Its content will be developed as later courts deal with new cases.

Two examples: The prevailing view in NFIB on whether Congress can regulate something is whether it's an "activity" or a failure to engage in action. (I use "prevailing view" because here I'm not interested in the bubbling dispute over whether that view is dictum or holding.) The content of that rule depends on how you characterize the target of the regulation. Consider an old statute, the federal Railway Safety Appliance Act. It requires those who operate railcars in interstate commerce to have automatic coupling devices. Is operating a railcar with only a manual coupling device an activity or an inactivity: "Activity," when characterized as "operating a railcar"; "inactivity," when characterized as "operating a railcar with a manual coupling device but not with an automatic coupler." It's the "but not" that shifts the thing we're talking about from one category into the other. (I know, I know: The Safety Appliance ACt is constitutional because it regulates an instrumentality of interstate commerce, a separate doctrine. I'm using it only to lay out the structure of the "activity"/"inactivity" distinction.)

Now, follow David Bernstein and imagine Governor Romney winning the election in November and appointing a few new, young conservatives to the Court. It's not hard to imagine the "Romney-Roberts" Court being aggressive about characterizing regulations as bearing on inactivity -- inserting lots of "but nots" into the characterization -- and therefore unconstitutional -- whereas a more"liberal" Court would choose "activity" characterizations.

My other example is more antic: Imagine that President Obama is reelected and gets to appoint a couple of liberal justices to replace Justices Scalia and Kennedy (or, if they outlast him, that a Democrat is elected in 2016 and makes such appointments). Congress enacts a new "individual mandate" to engage in some activity. It's challenged as inconsistent with NFIB. The defenders say, "Wait a minute. NFIB says that one important reason for finding the ACA unconstitutional is that it's a completely novel method of regulation. But, this new statute isn't completely novel: The precedent for it is the ACA. True, you told us that was unconstitutional because it was novel, but this one isn't novel in the same sense, so it's constitutional." (It should go without saying that this isn't a winning argument until the Court's composition changes, but it's not an argument that NFIB "in itself" makes frivolous.)

NIFB can't possibly be a Pyrrhic victory, a cloud with a silver lining, a battle won though the war was lost, a war that was won though the battle was lost -- I refrain from providing the links -- until we see what courts in the future make of it.

This has been a lesson in Legal Realism 101, with a shout-out to Jan Deutsch's great article, PRecedent and Adjudication, 83 Yale Law Journal 1553 (1974). The takeaway is obvious: Elections matter.

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