In a comment on my recent post on public opinion and the individual mandate case, University of Richmond law professor Kevin Walsh suggests that the anti-mandate forces might need sympathetic plaintiffs in order to prevail in the court of public opinion:
Some say that the challengers to the individual mandate can win even if they lose on the merits. That is, they can win the broader battle for public opinion even if they lose in the Supreme Court. I think that’s right. This kind of win is a common goal of public impact litigation. But the strategy thus far pursued by the mandate challengers differs from the strategy one often sees in such litigation. A typical strategy focuses on real people and the effect of the challenged rule on them. Not so the individual mandate challenges.
In a recent post at The Volokh Conspiracy (“Public Opinion, the Individual Mandate, and the Supreme Court”), Ilya Somin compares the potential backlash that could be generated by a Supreme Court decision upholding the constitutionality of the mandate with the backlash generated by the Kelo case. The Supreme Court held in Kelo that government can use its power of eminent domain to take the property of an individual for use in a private party’s redevelopment efforts. The idea was that this would serve a “public use” by generating more tax revenue. One of the strategies of the challengers in Kelo was to highlight the plight of a particular individual, Susette Kelo, showing how the government was going to affect her life by taking her house away.
Contrast this strategy with that pursued by the individual mandate challengers. They have focused on the deprivation of liberty inherent in being ordered by the federal government to enter into, and stay in, an economic relationship with another private party. But this focus has not involved real people. Perhaps understandably, the mandate challengers have thus far chosen not to focus on the plight of particular individuals….
It’s certainly true that sympathetic plaintiffs are always helpful for public relations. But they are not essential. The anti-mandate forces are winning the public relations battle even without them, as we can see from polls showing that the vast majority of the public wants the Court to strike down the mandate. Sometimes, focusing on general principles is as much or more effective than focusing on tearjerking individual stories.
This is not the first major constitutional case in which the plaintiffs’ lawyers managed to win in the court of public opinion while downplaying the individual stories of their clients. As co-blogger Dale Carpenter shows in his excellent recent book on Lawrence v. Texas, the lawyers in that case deliberately shielded their clients from public scrutiny in large part because they were likely to seem unsympathetic to the public (both men had criminal records for minor offenses, they were not in a longterm relationship with each other, and they quite likely did not actually have sex the night they were arrested).
By focusing on the general principle that it is wrong for the government to prosecute people for consensual gay sex, the pro-gay rights side in Lawrence managed to win over the majority of the public, as well as the Supreme Court justices. The anti-mandate forces are trying to pull off a similar victory by focusing on the general idea that it is dangerous to give Congress a blank check to enact whatever mandates it wants. This strategy has been very successful with the general public, though it remains to be seen whether it will work with the justices.
Walsh also argues that the diverse circumstances of individual plaintiffs justify 6th Circuit Judge Jeffrey Sutton’s approach of barring facial challenges to the mandate and instead forcing plaintiffs to make individual as-applied challenges. I criticized Sutton’s theory in detail in this post.
UPDATE: Timothy Sandefur of the Pacific Legal Foundation points out that at least some of the anti-mandate cases do have sympathetic plaintiffs:
Prof. Kevin Walsh thinks opponents of the Individual Mandate should have found a sympathetic client. How about PLF client Matt Sissel?
A decorated Iraq War veteran (a Medic, incidentally) as well as an entrepreneur and a talented artist, Matt started a business to sell portraits and other artwork. He doesn’t buy health insurance because it doesn’t make financial sense for him to do so, given his other financial commitments, his health, and so forth. But thanks to the Mandate, he’s forced to buy insurance he doesn’t need with money that would be better spent growing his business, in order to subsidize insurance companies, who are, in turn, forced to provide insurance to people who are already sick.
Sissel tells his own story here. He certainly seems like a sympathetic plaintiff to me.
Sissel’s case, of course, is not the one before the Supreme Court right now. But one of the plaintiffs that is before the Court is the National Federation of Independent Business, the nation’s largest small business organization, which likely has members who are small businesspeople that find themselves in a situation similar to Sissel’s.