Libertarians don’t care for many of the Supreme Court’s precedents.

While there are a number of cases libertarians tend to like, there are many libertarians do not like. Look no further than Chip Mellor and Bob Levy’s “The Dirty Dozen,” which focuses on “twelve Supreme Court cases [that] radically expanded government and eroded freedom.” Oldies like Nebbia, Helvering, Wickard, Blaisdell, and newer cases like Chevron, American Trucking, Kelo, and Raich, are the targets of liberty-ire. I’m sure NFIB v. Sebelius makes the baker’s dozen.

This debate is nothing new, and has been rehashed many times. However, in the aftermath of the challenge to the Affordable Care Act, I think there is one important lingering issue that has gone somewhat unresolved. Libertarians make no secret that, in an ideal world, they would want many of these precedents to be reversed. Yet, when confronted with an opportunity to have these precedents overturned, libertarians are more restrained.

The challengers to the ACA crafted an ingenuous strategy whereby the Court could invalidate the Affordable Care Act without overturning a single precedent. Raich and Wickard, one-sixth of the dirty dozen, would remain on the books. This strategy gave the challengers the best chance of success, precisely because the challenge would be limited–it would effectively be a one-off. Ultimately, this strategy did not pan out.

Likewise in Gonzales v. Raich, Randy Barnett, the godfather of the ACA challenge, did not seek for the Court to overturn Raich outright, but sought to distinguish that wheaty case. As Randy noted in a post in response to Jeff Rosen, who asserted that Randy’s Raich strategy was overturn Wickard, “While devoting pages to this argument, in a single sentence we did ask that Wickard be reconsidered ‘if the Court were to conclude that Wickard is controlling’ (i.e. if it rejected our distinctions), but this is an obligatory request never mentioned in oral argument.”

This exchange from NPR is illustrative:

Barnett argues that the health care law can be struck down without undoing 75 years of judicial precedent. “Nothing about existing Supreme Court doctrine needs to change for us to prevail in this case,” he insists.

But his critics, including George Washington University law professor Jeff Rosen, contend that Barnett’s claim is disingenuous, and that the real goal here is to achieve what has not been achievable even by conservative Republican presidents and Congresses: rolling back major economic regulation.

“Let’s not pretend that this is just a modest case of applying existing precedents,” Rosen says. “The question is: Are you going to reverse decades of judicial deference in economic matters?”

I suppose the idealized libertarian challenge, in the mold of The Dirty Dozen, would be McDonald v. Chicago. In McDonald, libertarians–joined by many prominent liberals and conservatives–made no secret they they sought to overturn The Slaughter-House Cases. This was a case that nearly everyone agrees was wrong when it was decided, and a case on which almost no one relies. This would have been a perfect opportunity for the Court to wipe this precedent off the books. Only Justice Thomas was willing to bite. Sardonically, Scalia scoffed at this strategy, which he said appealed only to the “darlings of the professoriate.”

Likewise, I could lump Heller into the same category. Levy and Mellor listed U.S. v. Miller–the Supreme Court’s previous, ambiguous, pronouncement of the Second Amendment–as one of the dirty dozen. Though the challengers sought to overturn Miller, bizarrely, the Court did not overturn it, but instead incorporated it into Heller calculus (in a way, as Nelson Lund has pointed out, makes almost no sense).

There seems to be two tiers to the judicial restraint/activism/engagement debate that are revealed with these recent SCOTUS cases. One is whether or not a court should strike down a law. As Joel Alicea pointed out, the older strain of conservatives in the John-Marshall-Harlan mode, were loathe to strike down laws–this was Roberts’s opinion in NFIB. More modern conservatives, like the NFIB dissenters had no problem striking down the ACA.

However, a second strain of judicial restraint and modesty  concerns whether you actually need to overturn precedents in order to strike down a law. And this is the trickier issue.

In NFIB, four dissenters, plus Roberts, were willing to find that the ACA violated Congress’s enumerated powers. They all reached this conclusion without even touching Wickard or Raich by accepting Barnett’s distinction–that this law regulates inactivity, whereas all previous laws only touched activity.

It almost worked.

Taking the second approach to restraint–striking down a law without overturning on-point precedents through discovering key distinctions (Rick Hasen has called this stealth–overruling) allows a court to be quite engaged without seeming quite as activist (if there is even a distinction between the two).

I suppose the third strategy is what Justice Thomas did in NFIB. In a short opinion, Thomas said he would overturn Raich and Wickard. He did the same in McDonald, saying he would overturn Slaughter-house

Though, whether it worked or not, where does such a strategy leave us? Adrian Vermeule summed it up nicely:

But Barnett is too shrewd not to understand that judicial opinions by themselves cannot produce long-run victories. A future majority could uphold a future statute falling within the semantic scope of the rules that Barnett likes, by introducing some distinction that neither Barnett nor I can now anticipate. “Sure, the cases say that Congress may not regulate inactivity, but this is a regulation of a special type of inactivity, type X, and we’ve never said that wasn’t OK.” Whether the gambit will work will be a function of the then-prevailing circumstances, not of what some Justices said back in 2012. At the Supreme Court level, in hard cases at least, constitutional law is a game without legal rules; the rules are created and enforced by other means.

What does the second strategy portend long-term for libertarians?

Are we simply trying to take one stab at a time at the Leviathan, by finding new distinctions along the way? This is Scalia in NFIB and McDonald. Or are we trying to cut out its precedential legs, by gutting out old cases we do not think were correctly decided. This is Thomas.

When confronted with the opportunity to ask the Court to overturn several of the dirty dozen in ACA, libertarians did not. And, other than Justice Thomas, the Court declined that invitation.

So do we stick with the first strategy, or go with the second strategy?

If we take the first strategy, and only attack one case at a time, without seeking a wholesale change in constitutional law, then there is not much to plan. We just wait for the next case to come about, put together our collective liberty-oriented craniums, and come up with a solid and well-supported legal arguments as to why this is different from anything the Court has considered before. Before Barnett and the folks at Heritage put forth their argument, no one had considered the activity/inactivity distinction in that way. But once they did, the argument was made, and it spread like wildfire. Frankly, this case-by-case approach is a very effective strategy, and one that lawyers (and law students) do almost instinctively.

Or, do we consider the second approach, and adopt litigation strategies that seek to change the Court’s precedents more drastically. When confronted with a case foreclosed by a prior precedent, do we try to have that precedent simply overturned and replaced.  This approach is much more difficult to conceptualize for one important reason–it requires libertarians to state what precedents we want to chuck away. In the case of the challenge to the ACA, a question often left unresolved is what precedents libertarians wanted overturned to invalidate the law.

Paul Horwitz offered one challenge to Randy, and I presume other libertarians:

What I would welcome from Randy, on the other hand, is a clarification. During the litigation, he seemed fairly adamant to me in pressing the point that it was irresponsible to assume that his arguments were aimed at anything other than this law and the immediate relevant precedents, which in any event he argued required overturning the law. But now that the main decision has been handed down, I would love to see an itemized list from Randy discussing (1) the major federal laws he thinks are unconstitutional and (2) the major Supreme Court precedents he thinks are “illegitimate” or that ought to be struck down. Legal academics are not always so shy on this point. I know Randy has written a book or two on this subject and one could start there, but I would really appreciate an updated list, so that I (and the Court) can be sure of his long game the next time he is litigating a case, and to avoid any unfair accusations about the implications of some argument he is making the next time he pursues a case to the Supreme Court.

Randy replied to a similar, though more direct point, made by Ian Millhiser at Think Progress. Ian wrote, “In other words, the fake constitution espoused by the anti-health reform case’s chief architect would roll back nearly one hundred years of progress — leaving poor children, minorities, workers and women out in the cold. If he wins in the Supreme Court next month, any of the great legislative victories of the New Deal and Civil Rights Eras could be next on the chopping block.” To this, Randy replied in the comments:

Nina Totenberg also accurately reported my view that a decision to invalidate the individual insurance mandate would not require the Supreme Court to overturn ANY of these precedents you like. If it did, we would not have so good a chance to prevail as we do. Of course, the Court is free to write a very broad opinion that would undermine its previous decisions, but we have not asked it to, and I would be shocked if it did. (Assuming we prevail, that is.) So even the reasoning of a decision invalidating the insurance mandate won’t do what you fear. Should we win, this will be an important symbolic victory for the idea of limited and enumerated Congressional power, but all the Court will need to say is that this unprecedented power, never before exercised in our history, is a step too far. (And as for the Civil Rights Cases, which I support, they should have been upheld under the 14th Amendment, rather than the Commerce Power, which some of the Warren Court justices did prefer. But bad Supreme Court precedent made the newly expanded Commerce Clause the path of least resistance. And Plessy was VERY bad law to which I have no desire to return.) While we do disagree about some important issues, civil rights is not one of them.

With respect to Civil Rights laws, Randy, like many libertarians approves of them as exercises of Congress’s powers under the 14th Amendment, rather than the Commerce Clause. Though, his answer was carefully nonresponsive to non-Civil Rights New Deal era cases. And these are the very cases that libertarians would need to address, under the second strategy, as precedents that need to go. The cases that Jeff Rosen keeps asking about. And the cases that seem most directly in tension with cleaning out the Dirty Dozen.

I have been invited to contribute a piece to a symposium issue of the Chapman Law Review about the future of libertarianism post-ACA. I think this post will largely serve as the basis of that article.