Polling and the Supreme Court

Jonathan posts yet another poll confirming both the unpopularity of the individual insurance mandate and the popular desire and expectation that the Supreme Court will it unconstitutional.  What is interesting to me about this particular poll is that this result obtains despite the fact that it has elements of a push poll.  As supporters of the ACA love to point out (see below), individual elements of the Act — such as those concerning pre-existing conditions, or allowing offspring to stay on their parents’ health insurance policies until age 26 — consistently score favorably.    The Kaiser Family Foundation, which specializes in health care policy and supports the ACA, first informs the respondents of these known-to-be favorable features of the Act before soliciting their approval or disapproval.  This is probably not technically a “push poll” because they ostensibly ask whether respondents are aware that the bill contains these features rather then tell them that it does.  But the information-imparting function of these questions still remains and was undoubtedly intended.  Now this practice can be defended as measuring the public’s “true” opinion of the ACA, but it is not a very good way of assessing the opinions of the public “in the wild” so to speak.  All this is very well known among polling companies, and the previous polls about the ACA and the individual mandate, such as those by the AP and USAToday, to which I have referred here have not done this.

Still, having done all it could to favorably affect the outcome, the individual mandate still scores highly unpopular, and is perceived as unconstitutional.

But then, according to Barry Friedman and Dahlia Lithwick, the Supreme Court should ignore the unpopularity of the ACA when making its decision.  In their Slate column, Justice by the Numbers: When it comes to deciding the future of Obamacare, the Supreme Court should ignore public opinion, the identify two academic theories on the relevance of the ACA’s unpopularity to the Supreme Court’s deliberations, both of which I find plausible and have offered some variant of myself:

Most recent academic thinking doesn’t assess how the Supreme Court decides cases. Rather, it observes that public opinion might constrain what the justices would otherwise do on legal or ideological grounds. (And even on this point there is disagreement.)  Say, for example, that the current justices believe the ACA is unconstitutional but are worried that they may get in hot water if they strike it. To the extent the polls are giving the justices accurate information—itself a dubious proposition—there  may well be breathing room for them to do what they believe is appropriate.  Conversely, if public opinion were hot for health care reform, then the justices might want to think twice before letting a negative view of the law take its course.  The idea here is that if the justices get too far out of line, they are apt to feel the sting of a disgruntled populace. (Ronald Dworkin ends this piece with a version of that argument.)

Another academic theory runs a little closer to what the media are saying. This theory is that the zeitgeist of the times actually affects the way the justices think about legal questions, whether consciously or not. As Yale Law School’s Jack Balkin has put it, an idea that seemed “off the wall” can begin to appear “on the wall.” For instance, there’s surely something to the idea that long-changing notions of the role of women in society affected the evolution of the gender-discrimination cases in the 1960s, 1970s, and 1980s. Public views about congressional control over the national economy, which evolved between the early 1900s and 1936, may well have played a role in the Supreme Court’s decisions upholding New Deal legislation. This is a story some endeavor to tell about the health care law today.  The idea that the individual mandate is unconstitutional—which seemed implausible a year ago—has evolved into something far more acceptable in the public mind.

They then find fault with these accounts and along the way, they predictably seem to equate a decision to invalidate the mandate with Dred Scott, the Godwin’s Law of constitutional discourse.  But here is their bottom line:

Assume it is true that a majority of Americans (a slim majority in most polls) has come to believe the individual mandate is unconstitutional. Then note the point the pundits overlook—that those very same polls also show a majority of the same people like their health care, and believe that the rest of the legislation should be upheld. For example, aMarch New York Times/CBS poll showed that 85 percent of respondents approved of the requirement that insurance companies cover people with a pre-existing medical condition, and 68 percent approved of the provision allowing children to remain on their parents’ policies until age 26. In the same poll, 51 percent of the respondents disapproved of the mandate. The problem is that Johnny and Janie Public can’t have what they want: affordable health care and no mandate.

Here’s the risk for the court:  The public may not like the mandate, but when it becomes apparent the choice was mandate or rejection for pre-existing condition (or any other provision of the law the public adores), Johnny and Janie may be really angry at whoever took their health care away. Think about Citizens United again. Who knew the public was so enamored of McCain-Feingold? The answer is no one—until the court showed what life without campaign finance regulations would look like.

It’s hard to predict, of course. But that’s the reason for caution in claiming polls are going to point the way out of this debate.  To hear some in the media tell it, you’d think the justices not only are, but should be, reading the polls to decide this case. That’s the very antithesis of constitutionalism:  reading the latest poll to understand our most long-standing and binding commitments.  The justices should keep their day job, and leave the poll numbers to the pollsters.

I totally agree with this recommendation to the Justices, though I find the reference to “Johnny and Janie Public can’t have what they want” to be both condescending and false.  What is remarkable about this column to me is that, as I recall, someone has written quite a lot, to the point of “obsession,” about how the Supreme Court is not actually a countermajoritarian body, and that it hews pretty closely to the mainstream views of the public.  And I never got the sense that this was considered by him to be a bad thing.  As it happens, I generally agree, as a descriptive matter, that the Court tends to reflect majoritarian views, though I think this is has sometimes resulted in very bad constitutional decisions and doctrines.

Oh, but maybe I am being misled by the last paragraph.  Maybe the real message is that the Court better uphold the mandate or Johnny and Janie Public will be very angry with it for “taking their health care away.”  So maybe Friedman and Lithwick are really counseling the Court against misreading the polling data, while ostensibly pulling back from this friendly advice at the end to counsel that the Justices should stick to their legal knitting.

In the past couple days, at least two serious academics who I like and respect have told me that the Supreme Court’s legitimacy with the public will be severely undercut if it invalidates the mandate, so the Court either should or will (or both) uphold it.  In response to this contention I then present polling date to show that, for example, that the Court’s approval rating jumped 12 points after the oral argument.  So not only does this “realist” assessment and/or recommendation run afoul of the polling data, these observers are either urging the Court to rule politically or predicting that it will (or both). Yet if the Court were perceived to have acted in this manner, then this would indeed undermine its legitimacy with the public.  

So the Court had best do what I think it did do during the oral arguments, but which all too many pundits and professors have failed to do:  take seriously the actual legal arguments being made by both sides in their briefs to the Court.