Monday, May 21, 2012

Bush v Gore, Obamacare and the slippery slope

As part of Bush v Gore, the court stated in its majority opinion that the court's decision in the case could never be cited as precedent in another decision.

But think about the sort of precedent that is set by that!  If the court can decide whenever it wants that a decision cannot be used as precedent, then why would a slippery slope argument ever work in front of the Court?  In the Obamacare arguments, the conservative justices (including, sadly, Kennedy and Roberts) were focused on the things that could come after a decision in favor of Obamacare, such as mandated broccoli or burial insurance.

But those arguments are absolutely irrelevant in a post-Bush v Gore world!  The court can just say its Obamacare decision can't be cited as precedent, and they could still choose to find mandates for broccoli or burial insurance unconstitutional.

This could apply to any other slippery slope argument.  Gay marriage can't lead to incest or "man-on-dog" because any decision can declare itself unable to be cited.

Based on the oral arguments over Obamacare, the decision in the Obamacare case will come down to whether Roberts and/or Kennedy can come up with a limiting principle that would allow Obamacare but prevent broccoli.  Why can't Bush v Gore give them that principle?


alex n said...

because the lack of a precedent setting nature would be citing Bush V. Gore as a precedent, and they stated it cannot be cited as precedent. Perfectly logical

pegleg said...

Haha...Alex has a good point. In answer to your question though, Jeff, the reason why they can't do that is because ObamaCare isn't an issue of constitutional expediency. From time to time the Supreme Court is called upon to decide cases in order to prevent a constitutional crisis, which is why they invoked their power to decide that election. In such cases, their decision is taken to be entirely contextual and cannot be used to set precedent. The rest of the time, their whole job is to decide cases and build a body of legal interpretation that the country can use as a guide...that's their real job, not just deciding individual cases. So they can't say that for just any has to meet certain criteria.