Who Lost the ACA Litigation? Kennedy and Scalia in 2005

I was going to write a post suggesting that Roberts’s vote may have come out the other way if Gonzales v. Raich had come out the other way (it didn’t because Scalia and Kennedy voted with the majority). University of San Diego’s Michael Ramsey beat me to it (reprinted with permission):

In my previous post on the health care decision I suggested that Court’s institutional structure and environment make it an unlikely bulwark against the power of the national government. If that is so, the most important date for the outcome in the challenge to the individual mandate may have been June 6, 2005, when the Court ruled 6-3 for the government in Gonzales v. Raich.

That is not because of the force of precedent. Precedent, especially at the Supreme Court level, is overrated. Justices can and do (and perhaps should) distinguish cases on flimsy grounds. It’s also not because Raich was in itself an important case – the ability to grow marijuana in one’s own backyard seems a minor freedom at best. No one doubts that states can ban such activity, and most have for a long time. But Raich was a lost opportunity to build incrementally a legal culture that would have supported a more constraining decision in the health care case.

Consider the world we would have if Justices Kennedy and Scalia – who now deplore the Court’s failure to check the national government in the health care challenge – had joined Justice O’Connor’s Raich dissent. That would have produced a 5-4 decision against the government (those three plus Justice Thomas and Chief Justice Rehnquist, who did join O’Connor). Despite the closeness of the vote, it likely wouldn’t have met sustained opposition. O’Connor was perceived as moderate and non-ideological, providing political cover. The issue was narrow: whether the national government could prevent Ms. Raich from growing marijuana in her own backyard for her own medical use. A ruling against the government posed no serious challenge to the national drug laws, and O’Connor’s dissent (which would have become the majority) is appropriately and characteristically narrow. Liberal legal commentators, though generally suspicious of federalism, would not have had an immediate political interest in opposing the outcome, and some likely would have supported it on policy grounds. Raich herself was a sympathetic plaintiff about whom a good story could be told. No one could call such a result a “political” decision, nor imagine that it would threaten the Court’s legitimacy. In sum, though the decision would have been criticized, it would have been accepted into the legal culture, taught in law schools, cited in briefs, and become part of commentators’ vocabularies.

Would that have mattered? I think so. In this hypothetical world, the decision against the government in Raich would have extended the trend of the Lopez (1995) and Morrison (2000) cases, whose central message was that there were (some) federalism limits on the national government. It would have signaled that the longstanding and pivotal precedent Wickard v. Filburn didn’t mean everything it might be thought to mean. I am not suggesting that a pro-federalism result in Raich would have bound the Court to reject the health care law. But it would have supported and encouraged those already inclined to do so. It also would have warned the health care law’s supporters that a federalism challenge was plausible, correspondingly muting their outrage and denting claims that the Court was acting politically rather than legally. The step to be taken, in overturning the individual mandate, would not have seemed so large, nor would the threat to the Court’s legitimacy have been as plausibly raised. It would not, of course, have made the health care challenge uncontroversial — but it would have made it somewhat less exceptional.

Instead, the actual result in Raich (and especially Scalia’s and Kennedy’s agreement with it) signaled that the Court was not inclined to press the federalism project opened in Lopez and Morrison; a broad view of Wickard appeared secure, and it seemed plausible to assume that (absent political motivations) the Court wouldn’t take meaningful federalism-based actions against an important national law (since it could not even bring itself to take the insignificant action Ms. Raich wanted). The decision in Raich became a weapon for the health care law’s defenders – again, not because it bound the Court into a particular result, but because it promoted a legal culture in which federalism challenges weren’t expected to be taken seriously.

One may argue that something as abstract and ephemeral as “legal culture” can’t determine the views of life-tenured Justices. That’s likely true of particular judges and in particular cases. But in close cases there will be Justices who are uncertain and whose votes will be needed; and for them the legal culture will matter, both because they are products of it, and because they will hesitate to stand against it. The closeness of the health care case despite a hostile legal culture, and the speculations regarding the Chief Justice’s concerns, suggest that a more accommodating legal culture might have made the difference. If so, perhaps the challenge to the mandate was lost in 2005.

I would add that a strong argument against the sort of deference Roberts showed to Congress in adopting the dubious tax argument is that Congress showed little interest in exploring the constitutionality of the ACA as it was enacting it. A strong counter-argument, however, was that Congress simply assumed that the law was constitutional, given the deference shown in cases like Raich. That counter-argument would have been significantly weaker if Raich had come out the other way.

Scalia himself seems to have realized that his vote in Raich helped doom the case against Obamacare–in Raich he claimed to be bound by Wickard, a case he has now publicly disavowed.