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The Costs of Supreme Court Decisions: Towards A Best Cost-Avoider Theory of Constitutional Law

Supreme Court decisions have costs, and seldom are they higher than in constitutional cases. Consider how Dred Scott relegated free people to slavery, and how a civil war soon followed. Or how Black Americans suffered under Jim Crow for decades after Plessy. Or how in the wake of Korematsu, thousands of innocent Japanese-Americans were detained in incarceration camps until the end of World War II. 
 
Sometimes, however, groups that lose at the Court have something more to say about their fates. The Article V amendment process is usually only a trifling part of this story; these groups are far more likely to engage in sub-constitutional efforts to avoid their harms. For example, after the Supreme Court overruled Lochner, industries protected their bottom lines by raising prices and reducing employment. After Brown, some white families sent their children to private schools or moved to the suburbs. And after the Court invalidated fair share fees in Janus v. AFSCME, Council 31, public sector unions successfully persuaded workers to pay dues voluntarily. Not all Supreme Court defeats, it seems, inflict equally inescapable harms. Or in the language of law and economics, some groups are better able to avoid the costs of an adverse Supreme Court ruling than others. 
 
Constitutional law should take account of this fact. If virtually everyone agrees that neither the Court nor elected lawmakers will get every close constitutional question right, we may as well ask whether there is a way to minimize the costs created when either one is at risk of getting the Constitution wrong. This is a best cost-avoider theory of constitutional law: in hard constitutional cases, the Supreme Court should rule against the group that can best avoid the costs of an adverse decision.