I plan on mapping the polling data about the approval rating of the Supreme Court against the data about what people think the Court will do with the Affordable Care Act.
Adam LIptak today writes in the Times about a new NYT/CBS poll that shows that the approval rating of the Justices is really, really low.
Just 44 percent of Americans approve of the job the Supreme Court is doing and three-quarters say the justices’ decisions are sometimes influenced by their personal or political views, according to a poll conducted by The New York Times and CBS News.
Those findings are a fresh indication that the court’s standing with the public has slipped significantly in the past quarter-century, according to surveys conducted by several polling organizations. Approval was as high as 66 percent in the late 1980s, and by 2000 approached 50 percent. . . .
Thirty-six percent of Americans said they disapproved of how the Supreme Court was handling its job, while 20 percent expressed no opinion. Though the court’s approval rating has always been above that of Congress — which is at 15 percent in the latest poll — it has occasionally dipped below that of the president. . . . .
The court’s tepid approval ratings crossed ideological lines and policy agendas. Liberals and conservatives both registered about 40 percent approval rates. Forty-three percent of people who hoped the court would strike down the health care law approved of its work, but so did 41 percent of those who favored keeping the law.
Yet, a majority of Americans still want the Court to strike down some or all of the ACA.
On the highest-profile issue now facing the court, the poll found that more than two-thirds of Americans hope that the court overturns some or all of the 2010 health care lawwhen it rules, probably this month. There was scant difference in the court’s approval rating between supporters and opponents of the law.
Either way, though, many Americans do not seem to expect the court to decide the case solely along constitutional lines. Just one in eight Americans said the justices decided cases based only on legal analysis
The responses on immigration split along partisan and racial lines. About half of Democrats but only one in seven Republicans said the law went too far. The recent survey did not have enough black and Hispanic respondents to make fine distinctions among racial and ethnic groups, but 46 percent of those who identified themselves as nonwhite said the provision went too far, compared with 28 percent of non-Hispanic whites.
Asked about the health care case, 41 percent of those surveyed said the court should strike down the entire law, and another 27 percent said the justices should overturn only the individual mandate, which requires most Americans to obtain health insurance or pay a penalty.
Only 24 percent said they hoped the court “would keep the entire health care law in place.”
These numbers have not changed much in recent months and appeared to be largely unaffected by the more than six hours of arguments in the Supreme Court in March….
There was greater Republican opposition to the law than Democratic support. About two-thirds of Republicans in the recent survey said the entire law should be overturned, while 43 percent of Democrats said all of it should be upheld.
More than 70 percent of independents said they wanted to see some parts or all of the law struck down, with more of them saying they hoped to see the whole law overturned. Twenty-two percent of independents said they hoped the entire law would survive.
Jon Adler says:
So while legal elites might be aghast at a Court decision striking down the mandate, a majority of the public would be fine with it.
Ezra Klein says:
“Bottom line: If you’re Anthony Kennedy and John Roberts, and you want to rule against the individual mandate but you’re worried about a public backlash, this poll calms your fears.”
Ilya Somin says:
To avoid misunderstanding, I emphasize that the justices should not strike down the law merely because a large majority of the public wants them to. Most voters have only a very limited understanding of constitutional law, and many unpopular laws are still constitutional. Sometimes it is the Court’s duty to strike down a law even if a large majority of the public wants the law to be upheld, as happened when the Supreme Court invalidated laws banning flag burning. The real relevance of the polling data on the mandate is merely that if a majority of the Court believe that the law is unconstitutional, they are probably not going to be deterred from striking it down by fear of a political backlash or damage to their legitimacy.
Update: More from Mike Dorf:
All that said, I agree with the analysis I have seen (e.g., Ilya Somin on Volokh Conspiracy) indicating that the Court is unlikely to pay a public opinion price if it invalidates part of the health care law, because a majority of Americans apparently would like to see that. That’s not a legal justification for such a ruling, of course, but weak and strong legal realists alike would recognize that legal justifications do not necessarily decide cases.
And Robert Reich argues that the Court’s unpopularity could help the ACA:
The immediate question is whether the Chief Justice, John Roberts, understands the tenuous position of the Court he now runs. If he does, he’ll do whatever he can to avoid another 5-4 split on the upcoming decision over the constitutionality of the Obama healthcare law.
My guess is he’ll try to get Anthony Kennedy to join with him and with the four Democratic appointees to uphold the law’s constitutionality, relying primarily on an opinion by Judge Laurence Silberman of the Court of Appeals for the District of Columbia – a Republican appointee with impeccable conservative credentials, who found the law to be constitutional.
That means that the conservative justices would be wrong to conclude that just because two thirds of the country wants the Court to strike down part of the health care law, similar numbers of Americans would rally around a 5-4 decision against it. Over the long term, 5-4 decisions along party lines tend to decrease support for the Court among Democrats and increase support among Republicans, simply by reminding Americans of the partisan composition of the Court. If President Obama and other Democrats attack a 5-4 decision striking down health care as an act of Republican partisanship, this would increase the perception among Democrats that the Court doesn’t share their partisan views. And Democrats who currently oppose the mandate may come to oppose the conservative justices’ overturning of the mandate even more. “If the court strikes down the mandate, and elites, including the President, frame the decision in partisan terms, the decision will reinforce the roots of partisanship that many Americans see in the Court’s recent decisions,” Persily told me.
Given that reality, Chief Justice Roberts may have been too quick to conclude that 5-4 partisan divisions would decrease the Court’s legitimacy over time: The decrease in confidence among Democrats may be offset by the increase in confidence among Republicans. But Roberts was certainly correct that the Court should be held to different standards. As Roberts suggested, in an age when the White House and Congress are increasingly viewed as partisan institutions, avoiding polarization on the Supreme Court is a “special opportunity.” It is also a defining test of his leadership.