An Unconstrained Court: Why the Supreme Court Will Strike Down the Health Care Law (If It Wants To)

Most public debates about the Supreme Court's impending action on the Patient Protection and Affordable Care Act (a.k.a. the Presidents health care law or ObamaCare) have focused on the constitutional questions created by the case, particularly whether Congress exceeded its authority under the Commerce Clause by commanding citizens to purchase private health insurance as part of its regulatory scheme. Today at slate.com, Dalia Lithwick proposes a political case for the Supreme Court to uphold the law against these constitutional challenges. In particular, Lithwick asserts that the outcome of the case hinges on the willingness of the Court's five most conservative members---Justices Kennedy, Roberts, Alito, Scalia, and Thomas---to bear the costs of a public backlash against an unpopular decision undoing the law.

What matters is whether the five conservative justices are so intent in striking down Obama’s healthcare law that they would risk a chilly and divisive 5-4 dip back into the waters of Bush v. Gore and Citizens United.

Lithwick argues that at least two of the members of the Court's conservative wing, Kennedy and Roberts, can be scared into accepting the law by their reluctance to have the Court dragged into a partisan fight in the wake of a high-profile case decided along partisan lines.

That means that the court goes into this case knowing that the public is desperately interested in the case, desperately divided about the odds, and deeply worried about the neutrality of the court. (Greenhouse points to a Bloomberg News national poll showing that 75 percent of Americans expect the decision to be influenced by the justices’ personal politics.) To hand down a 5-4, ideologically divided opinion just before the Republican and Democratic Party conventions, would—simply put—...erode further the public esteem for the court. Justice Clarence Thomas doesn’t worry much about things like that. I suspect Chief Justice Roberts and Justice Kennedy worry quite a lot.

Lithwick doubles down on this line of thought, arguing that the Court's conservatives might strategically "throw" the health care case in order to build up political capital so they have firmer footing to reach conservative results in an imminent stream of cases related to gay marriage, voting rights, and other salient social and civil rights issues.

If I am right about this, some justices may believe that this isn’t a fight worth having....The court isn’t just hearing the health care case this year. It also heard a Texas redistricting case, and the Arizona immigration case. Next year it will hear the Texas affirmative action case, and very likely a case that will question the entire existence of Section 5 of the Voting Rights Act. Oh, and next term, the court may well have to contend with a gay marriage case, and at the rate state legislators are passing patently unconstitutional abortion regulations, it’s not unlikely the court will be revisiting Roe soon thereafter.....Given that line up of future cases, the five conservatives may want to keep their powder dry for now. I think they will. 

I completely agree with Lithwich that the result of the case is likely to hinge on political rather than legal considerations, although I think she is mistaken in her assessment of which way those considerations, especially public opinion, will push.

First, it is manifestly untrue that there is any crisis of confidence in the Supreme Court. Support for the Supreme Court is down slightly from a peak about a decade ago, but it is well within its typical historical range. Moreover, the Supreme Court continues to be, by a substantial degree, the institution of national government in which Americans express the most confidence.

To illustrate the point, the figure below shows data from the General Social Survey. In each survey year, respondents have been asked to express their degree of confidence in each branch of the federal government. (The question wording is below and the resulting data are reported by the variables CONJUDGE, CONLEGIS, and CONFED in the GSS data. Also note that values years for which the GSS was not conducted are imputed by taking the average value of the survey year before and after the missing time point.) The figure shows the proportion of respondents who express "a great deal" of support for each branch. In the 2010 survey (fielded after the Court's decision in Citizens United), 30.5% of respondents reported having a great deal of confidence in the Supreme Court. Since 1973, the average percentage of respondents expressing a great deal of support for the Court is 33.1.  In contrast, in 2010, only 17.0% of GSS respondents express a great deal of confidence in the Executive Branch and only 10.1% express a great deal of confidence in Congress. Contra Lithwick, the Court is entering the health care debate in a very strong position.

I am going to name some institutions in this country. As far as the people running these institutions are concerned, would you say you have a great deal of confidence, only some confidence, or hardly any confidence at all in them?

Likewise, Lithwick is (probably) mistaken in her claim that some of the Court's recent controversial cases---she mentions Bush v. Gore and Citizens United---have harmed the Court's standing in the public's mind. Though we don't have much data on public attitudes toward the Supreme Court since Citizens United, analysis of the public's responses to Bush v. Gore by Jim Gibson, Greg Caldeira, and Lester Kenyatta Spence indicates that the public's long term, diffuse support for the Supreme Court can insulate the institutions of judicial independence from backlash following disagreements with particular decisions of the Supreme Court.

She further errs in her claim that the Court's legitimacy is threatened by a public perception that Supreme Court justice are motivated by ideological or partisan considerations. Again, in a separate paper, Gibson and Caldeira demonstrate that this is not the case. As the Bloomberg survey that Lithwick mentions shows, Americans are broadly realistic about the extent to which Supreme Court justices are motivated by politics as opposed to a "mechanical" application of the law. Americans already know that justices are politicians. Americans are loyal to the Supreme Court because justices apply their politics in a consistent, principled fashion. Indeed, justices' willingness to engage in sincere, non-strategic behavior is precisely the reason that the public distinguishes the business of courts from the business of other political institutions. So, if a conservative majority on the Court is inclined to act on its sincere impulse to invalidate the health care law, they put the legitimacy of the Court in greater risk by hedging their inclination for political purposes than by acting sincerely.

Leaving these arguments aside, Lithwick claims that the conservatives on the Supreme Court may be wise to uphold the Affordable Care Act in order to provide political cover for a prospective string of partisan decisions on cases involving social issues and civil rights. I disagree. It is not at all clear to me how the Court will break on SB 1070 (the Arizona immigration law), Texas's redistricting scheme, or, potentially, on the question of gay marriage. Indeed, as I have argued before, it is entirely plausible that Justice Anthony Kennedy may emerge as a true swing voter across these set of cases, sticking with the conservatives on economic regulation cases and joining the liberals on social issues cases, to lead the Court in staking out a stronger and clearer space of personal liberty in the United States. If Justice Kennedy anticipates leading the Court to invalidate Proposition 8 (which banned same-sex marriage in California), for example, he may want to use the health care case to build up political capital among conservatives for the big liberal-leaning steps to come.

The upshot of all of this is that the Supreme Court is not constrained by public opinion to uphold the Affordable Care Act. As Lithwick notes (and too quickly dismisses) a majority of Americans believe the law to be unconstitutional. If a conservative majority wants to strike down the law (which I think is probable but hardly certain), it can do so without risking the long-term legitimacy of the Supreme Court.

The Court would, of course, encounter intense opposition to its decision among the law's supporters, but it would be compensated for that with intense support among the law's opponents. Indeed, more people would support a decision striking down the law than one upholding it. Moreover, if the Court strikes only the individual mandate (and the companion mandate for insurance companies to sell policies to anyone) but leaves other popular provisions of the law intact, like the requirement for adult children to remain eligible for coverage on their parents' health plans until age 26, the Court might be able to find something like a middle ground that could take some of the edge off opposition to its ruling. Likewise, a series of libertarian-liberal decisions on immigration, gay marriage, abortion and other social issues could potentially quell a more persistent backlash against the Court from the left.

Over the last six decades, the Supreme Court has been at the heart of some of the most salient political debates facing the United States. Among other things, it has integrated public schools, forced major changes in the criminal justice system, ended and restarted the use of the death penalty, banned many restrictions on abortion, and settled a contested presidential election. Despite its frequent descent into the heart of important national controversies, the Court has emerged as and remained the institution of American government in which ordinary citizens have the most faith. A decision to invalidate the Affordable Care Act would undoubtedly embroil the Court in controversy. But, just as it has weathered previous storms, the Supreme Court could most likely undo the president's health care law without placing itself in any lasting jeopardy.