Could the Barack Obama administration really ignore an adverse Supreme Court judgment in the King vs. Burwell (Case Number 14-114) health-care litigation, as a University of Chicago law professor has proposed?
Of course not. Obeying the court only with respect to the plaintiffs in this case would be a flagrant violation of the rule of law. It would put the administration in the position of flouting the court’s authority. It would be substantially more outrageous even than the Alabama Supreme Court’s order to its probate judges to ignore a federal ruling striking down the state’s anti-gay-marriage law. For these reasons, it’s also completely unrealistic.
The argument advanced by William Baude in an op-ed article in Tuesday’s New York Times is based on the kind of technicality that makes people hold their nose when they smell a lawyer coming. Whenever a court decides a case, it formally binds only the parties who are involved in that case. Unless it’s a class action with a large group of plaintiffs or defendants who were identified by their circumstances rather than by their names, you can always say after any judicial decision that the case doesn’t apply to anyone who isn’t before the court.
The essence of a system based on legal precedent is that we know the same court or any inferior court would rule the same way in the next case. That prevents us from relitigating every issue ad infinitum. It’s also the reason U.S. Supreme Court judgments have the force of law. They’re binding precedents for all other courts addressing issues of federal or constitutional law. They’re also binding on the court itself, unless unusual circumstances exist under which the court chooses to reverse its earlier holding — such as in Brown v. Board of Education, the desegregation decision, or Lawrence v. Texas, the landmark gay-rights case.
Formally, then, precedent is law simply because of a prediction that the courts will apply the precedent. The entire system of legality as we know it would collapse if every similarly situated person continued to act as though the judicial decision wasn’t binding. If every legal principle had to be brought to court every single time it arose, the courts would be overwhelmed with litigants. No one would ever make a contract — because you’d have to wait for a court to enforce it.
In the real world, what makes a judicial ruling into law is not simply the prediction that it will be followed. It’s the consensus within the society that the judicial precedent actually forms a rule that guides conduct. Take away that consensus, and you no longer have the rule of law.
At the risk of stating the obvious, the executive branch of the federal government is the single most important actor in U.S. legal affairs. What’s more, the government is a party to the King vs. Burwell litigation. Sylvia Burwell, in case you’ve forgotten, is the secretary of the Department of Health and Human Services.