The Healthcare Ruling’s Stare Decisis Conundrum – Part 2

My previous post brings us to the most puzzling part of this stare decisis question: why didn’t the joint dissenters concur with the analysis in Chief Justice Roberts’ opinion relating to the Commerce and N&P Clauses? After all, if the Chief Justice’s views on the two clauses were necessary to his majority opinion and were not dicta, then the dissenters had every reason to join that part of his opinion to make clear that it was a holding of the Court.

Moreover, having reviewed the opinions, I think the joint dissenters and the Chief Justice make almost identical arguments about the two clauses. Sure, there are slight differences in emphasis and even in persuasiveness, but there is nothing in the Chief Justice’s opinion that should have given pause to the joint dissenters (or vice-versa). Chief Justice Roberts seems to agree, since he saw fit to include his “accord” signal in the passage discussed above.

Should the dissenters’ decision not to join that portion of the Chief Justice’s opinion affect its precedential value, given that they came to exactly the same conclusion using almost identical reasoning?

I think the answer would have to be no. Objectively, the Chief Justice and the joint dissenters are in agreement as to the result and the reasoning. If Noah Feldman’s book on the FDR Justices teaches us anything, it’s that the actions of the Justices are not always guided by high principle and a sound view of the law; they can also be driven by personal animosities and petty grievances. I am not at all suggesting that that is what occurred here; I am simply arguing that it would make no sense to permit a Justice’s styling of his or her opinion to determine what the law is.

Consider this hypothetical: a Justice concurs only in the judgment of a five-member majority decision because he misunderstood the reasoning of the plurality opinion. His concurring opinion actually follows the exact same reasoning as the plurality opinion, but he doesn’t realize this. Would we really say that the reasoning of the plurality doesn’t control future cases, despite the fact that all five Justices agree on that reasoning? A Justice’s mistake (or any other subjective reason) is no basis for throwing out what is objectively the state of the law.

This argument cuts the other way as well. Just because Chief Justice Roberts says the Commerce and N&P Clause discussion was integral to his opinion does not mean that it was. Whether the Chief Justice’s opinion is dicta is an objective inquiry.

So the real question, it seems to me, is whether one thinks that the Commerce and N&P Clause analysis was—as an objective matter—necessary to Chief Justice Roberts’ opinion.

It must be so, since there are plausible reasons to think it was and nothing required the Chief Justice to avoid reaching the Commerce and N&P Clause question before moving on to the taxing power (see the avoidance canon discussion above). Conservatives who were hoping for a holding narrowing the scope of the Commerce and N&P Clauses got what they wanted, even if some don’t seem to have realized it yet.

Of course, all of this is subject to the obvious and major qualifier that, in the end, what matters is what the next Court that takes up a Commerce and N&P Clause challenge thinks of this stare decisis question. They can choose to treat the Chief Justice’s opinion as binding precedent or not. My point here was to say that the Court would be on firm ground if it chose to rely on Chief Justice Roberts’ opinion as the law on the Commerce and N&P Clauses.

UPDATE: Jan Crawford reports over the weekend that the joint dissenters “deliberately ignored Roberts’ decision…as if they were no longer even willing to engage with him in debate.” Orin Kerr has an interesting take over at Volokh. If what Crawford reports is true–and we have no idea if it is–then that would bolster the argument that the precedential value of the Chief’s Commerce and N&P Clause analysis shouldn’t be determined by the dissenters’ refusal to join it.