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 reform. Unfortunately for them, they got the memo only after that decision, too.
Compare Furman with another Supreme Court venture that went bad, and you can see the peril the justices face in the health care case. In Dred Scott v. Sanford, the justices attempted to resolve the slavery issue for the country by deciding Congress was essentially powerless to eliminate the practice. Although one can tell a story about why some justices thought they could bring peace this way to deeply troubled waters, we all know how that experiment in judicial fiat came out. The justices were hooted down in infamy at the time, and Dred Scott remains the leading exemplar of what a court should never do. At least the Furman decision left the justices with room to maneuver when their tacit understanding about popular opinion proved seriously wrong. Not so Dred Scott. The issue came once, and never again. The justices—with no opportunity to tack back—have paid a price for that misstep ever since.
The ACA case is a lot more like Dred Scott than Furman. If the court strikes down the law, in part or altogether, there won’t be a string of cases over time allowing for nuance and course correction. Health care reform will be dead.
The danger for the court in even glancing at polling about Obamacare is all the more severe given that pundits seem to be misreading the polls—or, more accurately, reading only half of what the polls have to say.
Assume it is true that a majority of Americans (a slim majority in most polls) has come to believe the individual mandate is unconstitutional. Then note the point the pundits overlook—that those very same polls also show a majority of the same people like their health care, and believe that the rest of the legislation should be upheld. For example, a March New York Times/CBS poll showed that 85 percent of respondents approved of the requirement that insurance companies cover people with a pre-existing medical condition, and 68 percent approved of the provision allowing children to remain on their parents’ policies until age 26. In the same poll, 51 percent of the respondents disapproved of the mandate. The problem is that Johnny and Janie Public can’t have what they want: affordable health care and no mandate.
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 binding commitments. The justices should keep their day job, and leave the poll numbers to the pollsters.
Read all of Slate’s coverage of the Affordable Care Act.