June 11, 2012

Jeffery Rosen's complicated idea about why the Supreme Court really should uphold Obamacare.

Generally, I'm tired of these MSM articles that seem to be trying to push the Court to uphold the Affordable Care Act — as if the Justices are reading these articles and vulnerable to efforts — by writers who obviously politically support the law — to scare them into thinking people will lose respect for the Court. I say "seem to be" because I think these articles are really about shaping public opinion. They're not telling the Justices that people will disrespect them. They are stoking the people's disrespect in advance of an opinion that strikes down the law (in case that's what happens), and they are laying the groundwork for arguments about why Obama should be reelected (and Democrats need to keep control of the Senate).

But I'm going to link to this new Jeffrey Rosen piece in The New Republic. Why? It's just so amusingly complicated. I'll paraphrase the points he makes, in order:

1. A new poll (which we talked about on the blog here) shows declining approval for the Supreme Court and a belief that the Justices are sometimes influenced by their personal/political beliefs.

2. Some people — including Chief Justice John Roberts — think that public opinion is affected by all the 5-4 decisions that reveal that there is a set of conservative Justices and a set of liberal Justices.

3. There's a new study (by Nathaniel Persily and Stephen Ansolabehere) that says people decide whether they approve of the Court based on whether they like the outcomes of the cases, which suggests that an effective way for the Court to get respect would be simply to provide the outcomes people want.

4. A survey shows that people do like the outcomes of most of the big Roberts Court cases, and that's out of line with the declining approval of the Court, but it might be that people are giving extra weight to some of the big cases, the ones they don't like — maybe Kelo (for Republicans) and Bush v. Gore (for Democrats).

5. Maybe people support or reject the Court based on whether they are conservative/liberal and whether they believe that the Court is what they are — conservative/liberal.

6. A lot of people don't know which Justices were appointed by Republican Presidents and which were appointed by Democratic Presidents. (Rosen assumes the conservative/liberal split among Justices tracks whether they were appointed by Democrats/Republicans, which happens to be true of the current Court, though it was untrue before the Obama appointments were made.) But a study found that in the set of people who know that Republican Presidents have appointed a majority of the Justices, Republicans tend to support the Court, and Democrats are less supportive.

7. Even though a large majority of Americans say they want to see the health care law stricken down, and despite the Persily/Ansolabehere finding that people like the Court when they like the outcome, it's a mistake to think that the Court's approval rating will climb if it strikes down the law by a 5-4 vote. This is because, over time, 5-4 decisions remind people that the Court has a partisan split, and while this will make Republicans like the Court more, Democrats will like it less. Rosen doesn't specify this point, but it needs to be understood here: Only 24% of Americans surveyed by the NYT/CBS want the Court to uphold the law, so it would seem that many, perhaps even a majority of Democrats will approve of the outcome. But Rosen is saying that somehow it will still hurt the Court's approval among Democrats because they will see the Court as partisan and conservative — especially with "elites, including the President" pestering them to think about the Court that way. 

8. Rosen concedes that even if everything in point #7 is right, the Court might move up in the approval rankings because of the increased approval coming from Republicans who like the Court for being so partisan and conservative.

9. John Roberts should eschew that method of moving up in the approval ratings, because he'd be a better leader if he avoided the appearance of partisanship.

ADDED: Here's my analysis:

1. Rosen had material that added up to the conclusion that the Court would improve its stature among Americans if it struck down the health care law.

2. Rosen doesn't want the Court to strike down the health care law.

3. Rosen wrote some complicated paragraphs and then declared that he'd shown why the Court shouldn't strike down the health care law.

44 comments:

Matthew Sablan said...

Wouldn't that be easier by making it a 6-3 decision with one of the "liberals" on the court (I think that conservative/liberal is too neat a box for the Supreme Court) to move over to the popular decision? Then, Rosen has a popular decision not decided by a 5-4 split. Isn't that even better than a 5-4 split for an unpopular decision?

Sotomayor, history is calling! (Or are one of the others more likely to be number six?)

Will Richardson said...

WI thought Obama approved of Supreme Court Justices who are sensitive to the will of the people.

Obama: "But you're right, Wolf, I taught constitutional law for 10 years, and I -- when you look at what makes a great Supreme Court justice, it's not just the particular issue and how they rule, but it's their conception of the court. And part of the role of the court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don't have a lot of clout. (Applause.)" http://goo.gl/eUVhm

Michael K said...

A lot of this comes from the 5-4 decision to stop counting in Bush v Gore. The earlier 7-2 decision settled the election. Personally, I wish they had left it at that. As it was, Bush was crippled by the Senate Democrats, who would not vote on his nominees, for months. That fact is conveniently ignored when 9/11 is mentioned. Rumsfeld had gotten two appointees approved by August.

Scott M said...

If Rosen is correct in his assertions about the ebbing public opinion of the court...and they actually cared what people thought of them...then the best thing they could do is rule the individual mandate unconstitutional. Poll after poll shows that almost 3/4 of the country wants it gone.

That should shore up their numbers nicely.

drozz said...

i just kind of get the feeling that the vote has already been leaked.

Tank said...

As indicated, the obvious solution is for one or two "liberal" Justices to say, yes, there is "some" limit to Fed power, and the mandate and this law exceed it.

Could that happen?

Doubtful, but stranger things have.

Unknown said...

Wouldn't it be easier if they just disqualify Kagan, as they should? Then it would not be 5-4.

Ann Althouse said...

"If Rosen is correct in his assertions about the ebbing public opinion of the court...and they actually cared what people thought of them...then the best thing they could do is rule the individual mandate unconstitutional. Poll after poll shows that almost 3/4 of the country wants it gone."

I think you can tell that he saw that's where his polls and studies were leading, but he put in a mighty effort to back out of that conclusion.

edutcher said...

Short version:

Mob rule, not rule of law.

He forgot the one about how overturning it might be "messy".

Roger J. said...

Professor: many years ago I was taught in poly sci classes that the supreme court reads the polls--that was of course an assertion, but I would be interested in your take on that assertion.

Tim said...

"But Rosen is saying that somehow it will still hurt the Court's approval among Democrats because they will see the Court as partisan and conservative — especially with "elites, including the President" pestering them to think about the Court that way."

Rosen is correct.

Democrats are dimmer, and more subject to political manipulations (does one have to look any further than the empty-suit, affirmative-action hire for confirmation of this?) than normal people.

Ergo, Democrats almost assuredly will very well approve of the decision to strike down either the individual mandate or the entire ACA while growing to hate the Court even more.

Contradictions only bother rational people.

David said...

So the Supreme Court should become like the Senate, requiring a supermajority for all decisions?

You can bet that idea would disappear etch-a-sketch like if the liberals commanded 5 votes.

G Joubert said...

Some people — including Chief Justice John Roberts — think that public opinion is affected by all the 5-4 decisions that reveal that there is a set of conservative Justices and a set of liberal Justices.

I'm thinking those who support ACA and want it upheld will take a 5-4 vote in their favor in a New York nanosecond with no regrets. And I go on to think those who want it struck down would likewise be happy enough with a 5-4 vote their way.

Sure, we'd all like 9-0, but that's not gonna happen.

sonicfrog said...

I pretty much figured that the court had decided how they would rule on the case days after all the testimony was done, and that the decision is in a drawer just waiting to be re revealed. So all this "Shaping" the media is trying to do, is for themselves, and their liberal audiences, not the courts.

Matthew Sablan said...

"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."

-- Then maybe the President shouldn't attack court decisions he doesn't like?

Dan in Philly said...

I'm of the opinion that many of the rulings are unpopular by liberals because the consititution itself is not a document respected and loved by them. In this they may or may not have a point, but they are dishonest in their objections - probably because if the came out against the consitituion as they would like to they would be less popular than they are.

Roger J. said...

Agree with Sonic Frog--as I understand the process the supremes have made their decision, and dissents have been written--we will have to await the end of the term to find the results.

Roger J. said...
This comment has been removed by the author.
Jimmy said...

I don't read The New Republic so I don't know whether I should be surprised that they would publish something as superficial and vacuous, as if the Supreme Court should even consider for a moment how their rulings might affect their "favorability ratings".

cubanbob said...

What is Rosen trying to prove with his circle jerk? That progressives will view the court in a lesser light? Wow. Who gives a crap? So all his b.s comes down to is ours (the progressive view) is the only legitimate point of view. Ann thanks for sparing us the loss of time and brain cells reading that garbage.

Chuck said...

Isn't interesting that there is so much gnashing of teeth over how the five Republican-appointees to the Court might rule?

No one seems to give the slightest credence to a possibility that, say, Breyer or even Ginsberg might vote with a nice and narrow Roberts/Kennedy opinion for a 6-3 majority. And that's surely not based on the legal issues, for which very good arguments can be made on both sides. It is absurd, in other words, that Justice Kennedy's (or Chief Justice Roberts') siding with the Obama Administration has to be a really close call, but Breyer's siding with the Administration is legally obvious. Why should that be so? Better said, it may be both true and absurd that Breyer's vote is in the bag for the Administration but Kennedy's vote is not in the bag for the plaintiffs.

When comes to pre-cast ideologies, the reigning champions are the Liberal Four.

Joe said...

Unfortunately, too many justices see the question they face as not whether a law is or is not constitutional on its face, but whether or not it can be justified constitutionally, no matter how twisted that justification.

The court is supposed to be a check on power of the other branches of government. It is blindingly obvious that they aren't doing their jobs. I've no faith they're going to start now.

Robert said...

Your dissection of Rosen reminds me of Mencken's famous line, "Criticism is prejudice made plausible." Do fix the typo in your second-to-last line.

Tank said...

Is it not ironic to worry about a 5 to 4 decision given the manner in which this law was "passed" in the first place, and what the public opinion was then, and ever since?

kcom said...

"Is it not ironic to worry about a 5 to 4 decision given the manner in which this law was "passed" in the first place, and what the public opinion was then, and ever since?"

Well said.

And I'm assuming you're including Al Franken's election by "magic ballots" as one of the "manners" in which it was passed.

furious_a said...

Two words: battlespace preparation.

"But you're right, Wolf, I taught constitutional law for 10 years...

...and still don't know about Marbury v. Madison. Sad.

John Stodder said...

The underlying message is, "C'mon. Give the federal government a little more power. Please? It's not like you're doing anything with it. It's easy. Just votelikethis, and we'll have more power. Really, you don't care. There's no problem. Just a little bit more. You'll hardly notice. Don't be an asshole, just do it."

Henry said...

This one's too easy.

First comment. Matthew Sablan. Done.

Daddy Binx said...

Robert said...
Do fix the typo in your second-to-last line.


She's just using the future imperfect tense of the verb.

Scott M said...

She's just using the future imperfect tense of the verb.

If you look at a future imperfect verb, do you change it's outcome?

Kirk Parker said...

"If you look at a future imperfect verb, do you change it's outcome? "

If you look at it too sternly, you might make it tense.

Alex said...

All the 5-4 decisions leads one to believe that either the liberal justices are hyper-partisan or the conservative ones are. They both can't be Constitutionalists at the same time and not have every vote by 9-0.

Scott M said...

If you look at it too sternly, you might make it tense.

If you give it too much stimulation, you might end up with an ADDverb.

Ignorance is Bliss said...

You might want to reword point number 4: it seems to imply ( but does not actually state ) that Bush v. Gore is one of the big Roberts court cases, but of course it was before Robert's time.

Daddy Binx said...

Scott M said...
If you give it too much stimulation, you might end up with an ADDverb.


"Struck!", he ejaculated.

Scott M said...

"Struck!", he ejaculated.

If you turn it up to 11, you get reverb.

Richard Dolan said...

Rosen's piece doesn't say much that is new -- the idea that the SCOTUS should reject the constitutional challenge to ObamaCare in order not to appear too political/activist has been around for a while. It also figured (arguably) in the decisions by Judge Sutton (6th Cir) and Judge Marcus (11th Cir) to vote to reject the constitutional challenge, as well as in the DC Circuit's decision that upheld the law by avoiding the main issue. But those judges were constrained by prior SCOTUS decisions in ways that the SCOTUS itself is not.

Fortunately, all the games about what might influence the Court's decision are about to end -- decision day is, at most, only about 3 weeks away.

sonicfrog said...

The ADA stuff is a distraction. Here is what liberal pundits are really afraid of and afraid to talk about in public - It's looking more and more likely the Democrat Barrack Obama is going to lose his re-election bid. This put yet another Republican in office. What they fear now is that the 5 to 4 ratio is going to get much worse for them. Lets face it, if one of the liberal-ish Supreme Court Justices were to either suddenly have to step down from the court, or God forbid, drop dead, Obama would not be able to pick a replacement before his term ends. The only thing this administration has been able to do is, at most keep the status quo on the courts... But then, he also has done the same with the GWOT, and the economy, and unlawful indefinite detention, and....

Blue@9 said...

It's amusing to me that the argument is '5-4 is bad. The 5 should agree with the 4.' Why shouldn't the 4 move closer to the 5 if that's such a concern? This is like during debt-ceiling negotiations when both sides drew lines in the sand and the leftpundits' argument was: These Republicans are at fault because they refuse to compromise! It never occurs to them that if compromise is the high ideal, perhaps their side should compromise.

Daddy Binx said...

No, No, NO!

Modern political lexicon:
Compromise - when you change your position to agree with me
Wingnut/partisan/radical/the-end-of-democracy-as-we-know-it intransigence - when you want me to change my position to agree with you

Keep it straight, people!

Q said...

I'm assuming you're including Al Franken's election by "magic ballots" as one of the "manners" in which it was passed.


There was also the phony "indictment" of Ted Stevens which resulted in another Democratic Senate seat. That should be on the (long and ever-growing) list of things for a Romney Justice Department to investigate.

Robin said...

Dear Prof Althouse, I can't figure out how you can stand to read these incoherent screeds put out by PPACA propagandists but you certainly boil it down to the bottom line.

Almost Ali said...

Back in March I [boldly] predicted that we wouldn't get a 5-4 decision: Link

No, my money is on 6-3; against. But 7-2 is also in contention, followed by 8-1, and finally 9-0 (in which case we can safely assume a conscious, collective effort to thwart the perception of political [human] motivation).

I only other possibly I see is that they will never publish their decision.

Almost Ali said...

... "The" only other...