Originalism helps maintain the norm that the Court should follow precedent when there are truly enormous costs of discarding it.
At the New Republic, Adrian Vermeule has an excellent essay on precedent. Vermeule makes the following points:
1. “Precedent has limited constraining force, especially in hard cases at the Supreme Court.” And “the Justices are not particularly faithful to their own precedents, let alone to those written by others.”
2. “If the Justices rarely overrule precedents . . . it may be because they rarely need to.” Instead, they can usually, with enough hard work and ingenuity, distinguish precedents.
3. “The health care opinions feature the most useful tool” that the Justices have in distinguishing cases, “which is the introduction of an entirely new conceptual dimension unanticipated by the earlier precedents.” It is true there were precedents involving broad power to regulate economic matters prior to the health care decision, but the health care case involves the regulation of “economic inactivity rather than economic activity, and we’ve never said that was OK.” In other words, the Justices introduce a new legal category that helps them distinguish the earlier cases.
4. “The precedents that mattered in the health care cases were not legal precedents in the narrow sense,” but instead what Adrian calls conventions, “normatively colored expectations, held by public opinion and (derivatively) by public officials, about how political actors, such as the Justices, do and should behave.”
5. It is a “convention that the Court should not invalidate major social welfare statutes enacted by the federal government.” This norm “is not found in terms anywhere in the reports of Supreme Court opinions, but it seems likely to have weighed on the Court’s decisive voter, Chief Justice Roberts.”
This last point is very important. It is part of the so called “New Deal Settlement” that the Court is not supposed to strike down important federal social welfare legislation. Had the Court struck down Obamacare, it would not have been merely a big deal politically. There have been other politically important cases. It would also have been a significant departure from the New Deal settlement. It is hard to believe that Chief Justice Roberts, who despite being a Reagan Administration lawyer, was brought up on that settlement, would not have felt its force.
Of course, since these conventions are not part of the Court’s opinions and are not stated (at least in Court opinions) to be a legitimate basis for a decision, if this was the Chief’s motivation, it would have been of questionable legitimacy.
Finally, the biggest aspect of the Sebelius decision is not merely that 5 Justices held that the mandate could not be sustained based on the Commerce Clause. As Adrian makes clear, it would be easy enough for a future court to side step that holding. Instead, the most significant aspect of the decision is that 4 Justices were willing to depart from the New Deal settlement. That really is a big deal. (I doubt that Justice Scalia would have been willing to do this 10 years ago, as his Raich medical marijuana vote suggests.) It means that in the future, with the vote of one more justice, the New Deal settlement might be significantly modified. It also means that the Court might actually be willing to follow – rather than to distinguish – its Commerce Clause holding in the future.