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As someone who has lived in New York and Texas, I still find this remarkable.

 

And what if we applied the population density of Houston (not very dense)? It would take up most of flyover country.

A recent Rasmussen poll shows that only 28% believe the Supreme Court is doing a good or excellent job. However, 30% believe it is doing a poor job (the highest ever score). Glenn Reynolds opines that “John Roberts seems to have operated with one eye on the media and it doesn’t seem to have made the Court more popular.”

Counterfactuals are impossible for the very reason that we can never know what would happen under different circumstances. But, if I may indulge you, let’s speculate.

What do you think would have happened to the Supreme Court’s popularity if the Cout struck down all of Obamacare. The President would have spent much of the 2012 re-election campaign talking about the Supreme Court, stressing how it was political, calling on Americans to vote for him to ensure that he can appoint judges, implicitly suggesting that they would vote his way (not to dissimilar from his D.C. Circuit rhetoric). In reality, the Supreme Court was not mentioned at any time during any of the 2012 debates (other than a stray mention of Roe during VP debate).

After NFIB was decided, many pundits saw a small drop in the Supreme Court’s favorability rating along with a high unpopularity scoring of Obamacare, as evidence that the Chief misjudged the will of the people, and that the Court would have been okay had they struck down the ACA. As I note in Unprecedented, I don’t find this short timeframe particularly helpful.

Although polling data in the immediate aftermath of NFIB showed a negligible dip in the approval rating of the justices, and the ACA remains to this day quite unpopular—suggesting that people would have been happy with the Court striking down the law—the important timeframe to measure damage to the Court’s reputation is not measured in weeks or months, but in years and decades. These generational shifts, subtle at first, are often hard to perceive. For- tunately, much of the potential damage in this case was averted, as NFIB turned out in Obama’s favor. There was no need to interject the Court into the 2012 election. But had NFIB gone in a different direc- tion, the aftermath of this constitutional clash could have turned into another crucial chapter in this downward decline.

A significant portion of Americans *still* do not know what Obamacare’s mandate is. How they view the Court’s decision to uphold it, in the immediate aftermath of NFIB doesn’t tell us much (other than if they like Obama or not). What does matter is the long-term trend line of the Court’s credibility.

We will never know which way this counterfactual would have gone, but I think it is instructive to consider it before celebrating the Court’s polling numbers as proof that the Chief made the wrong call. I don’t think the goal was making the Court *more* popular. Obamacare was a no-win situation. I think he tried to minimize the damage, and stem rising unpopularity. Arguably, he did just this.

In remarks at the Aspen Institute, a banged-up Justice Breyer offered some remarks on his propensity to perpetually dissent over and over and over again in the Apprendi line of cases.

Adam Liptak’s Sidebar column,  focuses on Breyer’s Perpetual Dissent (and cites a GMU Law Review article!)

In 2002, for instance, Justice Stephen G. Breyer acknowledged that the logic of a decision from which he had dissented two years before, Apprendi v. New Jersey, required juries, not judges, to determine the facts supporting some mandatory sentences. But, Justice Breyer wrote, “I cannot yet accept” the earlier decision.

As he commented during Alleyne:

JUSTICE BREYER: I mean, in the one case you can say all that Apprendi did — it never should have been decided; I mean, some of us thought that — because in fact -­

JUSTICE SCALIA: I wonder who that could have been.

(Laughter.)

Here are his (partially captured) remarks at Aspen:

When a similar issue comes up again and again, At what point do I say alright, I’ve made my point. It’s time to go and change. The law did not take what i said. I don’t want to be in the minority forever. It is a personal question about law.

It seems that he is finished dissenting from Apprendi.

A recent Gallup Poll paint a problematic picture for the rollout of the individual mandate on January 1, 2014. While 85% of those with insurance are aware that Americans will have to buy insurance or pay a fine (really a tax but whatever), only 56% of those without insurance are aware. More troubling is that 43% don’t have health insurance because it is too expensive. The aptly-named Affordable Care Act has done little to assuage concerns about cost for most Americans (though it has made care affordable to those who could not previous afford it).

If the young, healthy people cannot afford to buy insurance, and choose to pay the penalty instead (it’s unclear they will even realize why their tax bill goes up–most people just pay whatever the form tells them), Obamacare will be severely impacted

Poor Justice Breyer at Aspen wearing a cast and a sling.