Why the Obamacare Case May not be “Settled Law”

Indiana University law professor Gerard Magliocca has an excellent Washington Post column on why the Supreme Court’s decision largely upholding the constitutionality of Obamacare may not be fully “settled law”:

The Affordable Care Act was passed by Congress, signed by President Obama, upheld by the Supreme Court and reconfirmed by the president’s reelection. Many of its provisions have gone into effect. As Democrats have taken to saying, it is the law of the land.

But contrary to what the president suggested in the Rose Garden this past week, that does not mean Obamacare is “settled, and it is here to stay.” And it is not illegitimate for Republicans to use every lawful means at their disposal to stand in its way…

Lawyers use the term “settled law” to describe court decisions that clearly establish a rule or a doctrine. Yet settled law also refers to legal actions that are accepted by society. Consider two of the most famous Supreme Court decisions: Brown v. Board of Education, which desegregated public schools, and Roe v. Wade, which created the constitutional right to have an abortion. Both of these cases are “the law of the land.” They are binding on all courts in the United States. Only one of them, though, is settled in the broader sense of that phrase. It is perfectly acceptable for politicians, judges and ordinary citizens to attack Roe and call on the Supreme Court to overturn it. It is totally unacceptable to criticize Brown in 2013.

A statute or court opinion becomes settled law when there is a broad consensus that it is just.

Gerard enumerates a wide range of reasons why the Supreme Court’s ruling in NFIB v. Sebelius falls short of being fully settled. But the core insight is that there is no bipartisan or cross-ideological consensus about its correctness. If the balance of power on the Supreme Court shifts even slightly, it could easily be narrowed or overruled.

I would add that NFIB is also unsettled because there is deep disagreement about it among judges, scholars, and other legal elites. As far back as 2009, there was on expert consensus about the constitutionality of the Obamacare individual health insurance mandate and there is at least as much elite disagreement on the subject today as there was then, if not more. The closely divided 5-4 nature of the Supreme Court’s ruling on the case is just one indication of the lack of consensus. Moreover, the key swing voter – Chief Justice Roberts – actually accepted most of the case against the mandate, and “saved” it from invalidation only by significantly rewriting it. Sometimes, a decision reviled by many in the general public can nonetheless become firmly established because legal elites overwhelmingly support it. This is how some of the controversial Warren Court rulings of the 1960s eventually became untouchable. But, so far at least, nothing of the kind has happened with NFIB v. Sebelius.

NFIB is far from the only case that is unsettled in this sense. Gerard notes the parallel example of Roe v. Wade. I would add cases like Kelo v. City of New London (another close 5-4 decision reviled by much of the general public, and a substantial number of legal elites), Citizens United (hated by most liberals, including legal elites), and the Court’s decisions striking down various affirmative action programs (ditto). Each of these precedents remains vulnerable to attack because they are hated by much of the general public, and influential legal elites believe they should be overruled or at least severely narrowed.

Justice Robert Jackson famously said that the Supreme Court is “not final because we are infallible, but… infallible only because we are final.” Sometimes, however, their decisions aren’t completely final either.

UPDATE: I should emphasize that I am not saying that lack of consensus about its correctness necessarily proves that the Obamacare decision was wrong. A Supreme Court ruling can be right despite the fact that it attracts widespread opposition, or wrong despite the fact that nearly everyone agrees with it. As Gerard notes in his article, lack of settled status also does not entitle lower courts to disobey a Supreme Court decision. However, the a widely disputed ruling has a different status in our political and legal culture from one that commands broad support, and is much more likely to be narrowed or overturned in the future.