At the New Republic, Adrian Vermeule has an excellent essay on precedent. Vermeule makes the following points:
1. “Precedent has limited constraining force, especially in hard cases at the Supreme Court.” And “the Justices are not particularly faithful to their own precedents, let alone to those written by others.”
2. “If the Justices rarely overrule precedents . . . it may be because they rarely need to.” Instead, they can usually, with enough hard work and ingenuity, distinguish precedents.
3. “The health care opinions feature the most useful tool” that the Justices have in distinguishing cases, “which is the introduction of an entirely new conceptual dimension unanticipated by the earlier precedents.” It is true there were precedents involving broad power to regulate economic matters prior to the health care decision, but the health care case involves the regulation of “economic inactivity rather than economic activity, and we’ve never said that was OK.” In other words, the Justices introduce a new legal category that helps them distinguish the earlier cases.