Things That Bother Me About The Supreme Court Argument (Part I)

by Stuart Shapiro

First things first, I think it is impossible to discern how the Supreme Court will rule on the constitutionality of the Affordable Care Act.  Second I think it is impossible to discern the political consequences of either decision.  Third nothing will bother me more than the ACA being invalidated and ten-twenty million people having to go without health insurance as a result.  All that said, I’ve seen two pieces that really disturbed me about the arguments this week.  First the idea that the Supreme Court might throw out a critical precedent (the history of a broad interpretation of the Commerce Clause).

What this says is that Congress and the entire country were relying on the precedents SCOTUS set to pass the law—and they spent almost two years and untold legislative resources doing it. That’s the whole point of stare decisis, allowing for predictability with respect to what the law allows. Stare decisis is what makes sure the courts don’t act arbitrarily by constraining them to fit within precedent.

Acting in ignorance or with disregard for precedent (and precedent’s practical attendants, like reasonable beliefs in the public about what the law is) undermines rule of law, makes it impossible to pass laws confident of their legality, etc. It is, in a word, arbitrary. It’s the kind of thing they do in developing countries.

Conservatives are so worried that we are becoming Europe that they are making us more and more like Somalia (and yes, I am aware that this is an exaggeration but so is any assertion that Greece is anything like the United States).

By: Stuart Shapiro

Stuart is a professor and the Director of the Public Policy
program at the Bloustein School of Planning and Public Policy at Rutgers
University. He teaches economics and cost-benefit analysis and studies
regulation in the United States at both the federal and state levels.
Prior to coming to Rutgers, Stuart worked for five years at the Office
of Management and Budget in Washington under Presidents Clinton and
George W. Bush.