The “Theory” of Preemptive Opinions
Both of my books discuss the rare phenomenon of a “preemptive opinion” by the Supreme Court. It would be stretch to call this classification a theory, because there are so few examples. (It’s hard to have a cataclysmic event theory). Nevertheless, the Affordable Care Act litigation is now perched on the edge of joining this select group.
Here are the classic preemptive opinions:
1. Worcester v. Georgia (1832)
2. Dred Scott v. Sandford (1857)
3. Pollock v. Farmers’ Loan and Trust Co. (1895)
4. A.L.A Schechter Poultry Corp. v. United States (1935)
The first thing to note about these cases is that they are not all “evil” or “wrong.” Some are and some are not. Thus, calling an opinion preemptive is not a comment on its merits.
What do these cases share in common?
1. They were all about high-profile political issues (the Cherokee Removal, slavery, the federal income tax, and the National Industrial Recovery Act).
2. They all invalidated (partially or entirely) those policies as unconstitutional, and became a big part of the next presidential campaign.
3. They all could have (and probably should have) avoided the constitutional question that they decided. (This is hard to summarize in a blog post, but the Anti Tax Injunction Act was at issue in Pollock, for example).
4. They all were exceptionally broad opinions.
5. They all invented a new way of conceptualizing either federal power or fundamental rights to reach the desired result.
6. They all came right before or right after a party realignment.
We cannot yet say that 2012 will see another entry into this Hall of Fame, but the wall is primed for the handwriting.