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The Law Matters

- June 28, 2012

This is a guest post by Michael Bailey and Forrest Maltzman, authors of The Constrained Court.  In November 2011, they predicted that the Court would uphold the Affordable Care Act, based on modeling of the justices’ ideological preferences and attitudes toward precedent.


After months of excruciating waiting, guessing, and waiting some more we now have heard from the Supreme Court on possibly the biggest case of a generation. We are definitely happy to claim that its decision is consistent with our prediction and our book.

There are many fascinating aspects of the case. First, it is simply not true that the Court is simply and exclusively a policy-oriented institution.  The Court is often political.  Some justices can be very political.  (Indeed, it is hard to read Scalia’s scathing attack on President Obama’s immigration policies as anything other than political.)  But the Supreme Court is not completely political.  Other factors – a complex combination of legal considerations and external constraints – can push the Court to do things differently than nine legislators would do.  Policy preferences alone do not dictate Court outcomes.

Second, this case reinforces our book’s argument about the idiosyncrasy of the Court.  We find again and again that justices differ in the degree to which any given legal or political factor matters.  We can partially predict this variation — justices with previous bench experience are more likely to respect precedent; justices appointed around the New Deal era were more likely to defer to Congress — but the variation is vast.  At some level this is consistent with the attitudinal model’s claim of broad discretion for justices, but while the attitudinal model claims justices use that discretion to pursue policy goals, we believe justices use their discretion to pursue a broad range of goals that includes their values about law and views about the appropriate role of the Supreme Court.

The most idiosyncratic choice was Kennedy’s.  Few thought the mandate would survive without his vote.  Our prediction (which was based on some judgment calls about the case) was that he would vote to strike with about 50 percent probability.  Coming off a week in which he voted against mandatory life sentences for juvenile offenders it cannot be said that he is reliably liberal or conservative.  He’s just hard to predict.

As for predictions in general, I’m glad that ours worked out, but I wouldn’t want to claim that this was the goal of what we were doing.  The goal of our models was to test theories about Supreme Court decision-making.  The prediction was a good exercise and, as it happened, adding legal elements in this case made us more confident about the Court upholding the law than we would have been from a purely policy perspective.  There is, however, always noise and I definitely wouldn’t want to make a living off of betting on Kennedy’s choices.

The political constraints might be where much of the action was.  As we predicted, Roberts wrote an opinion that “cabins Commerce Clause more than it is now.”  This is a big deal.  If Roberts limited the Commerce Clause as he did and struck the law, the Court’s legitimacy would come under a fierce assault.  The right comparison may not be Dickerson (where the Court upheld precedent that the justices likely did not agree with on policy grounds), but rather Marbury v. Madison, where the Court conceded on a particular policy in the interest of establishing a more general constitutional principle.

Roberts began his opinion by asserting, “We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.”  We concur.  Justices are constrained.