Polling, Popular Constitutionalism, and the Supreme Court

April 26th, 2012

Dahlia Lithwick and Barry Friedman write that it would be improper for the Justices to consider current polling–that overwhelmingly suggests that the mandate is unpopular and unconstitutional (not sure what the relationship between those conclusions is, but I’ll leave that for another time):

The problem with the zeitgeist theory as applied to health care is that there’s all the difference in the world between a zeitgeist many years in the making affecting a string of Supreme Court decisions and the notion that instant polling can reasonably predict or decide one particular case. To the contrary, history suggests that a court trying to catch and ride that zeitgeist wave can easily get knocked over by it, particularly when—as here—there is no room to correct course. In 1972 in Furman v. Georgia, the Supreme Court boldly struck down the death penalty throughout the country. According to popular opinion at the time, it didn’t seem like a bad guess. Polls showed support for capital punishment at an all-time low, there were rampant concerns about racism in executions, and several states had either explicitly or de facto abolished the death penalty. Unfortunately for the court, its anti-death penalty decision rapidly became the piñata at the public backlash party. In no time flat, some 35 states and the federal government re-established death penalty laws. When the justices confronted those new laws in the 1976 decision in Gregg v. Georgia, they backpedaled fast. They’ve been backpedaling ever since.

What academics (but not always the popular media) understand is that the zeitgeist usually settles in after a Supreme Court decision, not before it.  If Furman seems like ancient history, consider something surely on the justices’ minds today. They could not have anticipated the strength of the negative public reaction to the Citizens United decision on campaign finance reformUnfortunately for them, they got the memo only after that decision, too. . .  .

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 bindingcommitments.  The justices should keep their day job, and leave the poll numbers to the pollsters.

Randy Barnett replies, noting that Barry Friedman–who has written A LOT about how the Court is not a counter-majoritarian institution–seems to have changed his tune (I had a similar observation):

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 againstmisreading 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.

I have no idea how the public will react if the mandate is struck down. I think Dahlia and Barry are right. The results of striking down the mandate will only be felt after it is gone. It is all fun and games to oppose a law that hasn’t gone into effect yet (a reason to not find standing until the law is in effect). But, maybe people will not miss something that never went into effect (a reason not to delay adjudication until after the law goes into effect). I don’t know.