History Lesson: The Procedural Fairness Legacy of the Affordable Health Care Act   1 comment

There is intense speculation about the potential impact of the Affordable Health Care Act on the US Supreme Court’s standing with the American public. Decades of public opinion polling demonstrates the resiliency of the Court in withstanding case decisions that seriously displease large segments of the public.  The Court appears to command the loyalty of the American people because of the manner in which it reaches decisions, not the specific decisions it reaches.

Will history repeat itself in the case of the Health Care Act?  There are strong reasons for anticipating that the public’s loyalty to the Supreme Court as an institution will prevail, regardless of the case outcome. The partisan tumult associated with Bush v. Gore seemed at first to challenge such an expectation, yet after that case, overall support for the Court quickly reverted to its traditionally high (relative to other federal government institutions) level. In the short term, disenchanted Democratic-leaning Court supporters were instantly replaced with newly enchanted Republican-leaning Court supporters, leaving overall levels of support unchanged; however, even that effect was short-lived.  One month after the decision, over 61 percent of Democrats professed a favorable opinion of the Court and only 29 percent an unfavorable opinion [Pew Research Center]. Support for the Court once again became equally prevalent among Democrats and Republicans alike.

Today’s Supreme Court justices may have reason for concern that history will not repeat itself and that their decision in the Health Care Act case could reduce  diffuse support their institution receives from Democrats (and less certainly from Republicans, who already view the Court as too liberal, if the decision goes in the other direction). “Diffuse support” is a reservoir of good will on which the Court can draw, as opposed to the temporary “specific support” that it might receive based on agreement with a particular decisions.  In procedural fairness terms, diffuse support comes from public perceptions that decisions are being made according to principles of respect, neutrality, participation, and trustworthiness. Things may have changed since 2000. The Court is increasingly being seen in partisan terms. A Washington Post-ABC News survey last Sunday asked a random sample of adults, “Do you think the Supreme Court justices will rule on this case mainly on the basis of the law or mainly on the basis of their partisan political views. Forty percent answered “on the basis of the law” and 50 percent based on “partisan political views,” with another 10 percent undecided. Those responses come at a time in which support for the US Supreme Court has been declining, most likely a manifestation of a general decline of trust in government across the board. The past may therefore be a less certain guide to the consequences of a decision viewed unfavorably by a substantial segment of the public, especially if Democrats see the decision as part of a series of specific disappointments with the Court. Support for the Court cannot in the long-run rest on new supporters from one party replacing former supporters from the other.   

We have no way of predicting whether successive disappointments with specific Court decisions will lead to a decline in its diffuse support among a segment of the population. The historic relationship between the Court and African-Americans suggests, however, that groups who are dependable supporters can become persistent critics. Over time, the high level of support the Court enjoyed from the African-American community during the period of the Warren Court was replaced by atypically low levels of diffuse support. While African-Americans who grew up during the Warren Court era retained their loyalty, subsequent cohorts never developed a similar level of diffuse support. Bush v Gore   also teaches us that one effect of the Health Care Act will be to at least modestly increase public knowledge about how the Supreme Court operates.  People will talk about and think about the manner in which the Court is making its decision. This is both an opportunity and a risk to the justices. If what people learn and come to believe from news reinforces the belief that the Court follows a procedurally fair process, diffuse support for the institution will be enhanced. As Judges Burke and Leben noted in previous posts to this blog, the Court is taking some steps to expose its process to unprecedented scrutiny. That should be a plus. But the risk is real. In his analysis of the response to Bush v. Gore, political scientist Bert Kritzer noted that the Courts refusal to allow television cameras into oral argument may have served “to limit the vehemence of the public reaction to what the Court decides.”

On balance, the smart bet is on the Supreme Court’s continued ability to maintain diffuse support across the political spectrum.  However, demonstrating procedural fairness in the decision and how it is presented will increase the odds of history repeating itself in June 2012 when the decision is announced

David Rottman

Posted April 13, 2012 by drottman1 in Uncategorized

One response to “History Lesson: The Procedural Fairness Legacy of the Affordable Health Care Act

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  1. David Rottman gives an excellent account of the public support that the US Supreme Court enjoys as an institution. This is a phenomenon well documented by years of survey research. No one disputes the basic
    finding. However, an open, live issue is what accounts for what scholars call “diffuse support”. Rottman contends diffuse support depends on
    how citizens judge the procedural fairness shown by the Court both in the
    process by which decisions are made and the decision itself. He hypothesizes that members of the mass public assess the Court on the basis of the criteria of respect, nuetrality, participation, and trustworthiness. If these criteria are satisfied, then diffuse support will be maintained or increase depending on its previous level.

    However, Rottman’s blog seems questionable on two grounds. One possible flaw is that diffuse support is supposed to hold true in the minds of citizens with respect to a series of Court decisions not any particular decision. Hence, difffuse support seemingly is inapproriate to measure before and after the decision concerning the Affordable Health Care Act.

    A second question concerns the connection between procedural fairness criteria and diffuse support. Does procedural fairness really account for diffuse support? Other researchers, such as Jim Gibson and Greg Calderia demonstrate that support for the US Supreme Court is the greatest among the citizens who see the justices as principled in their use of discretion in making decisions. Knowledgeable citizens do not expect unamious decisions because they know the justices have discretion in making decisions.This is a quite different model than the one Rottman propounds. Hence, some reconciliation is necessary between the Gibson and Calderia findings and the procedural fairness theory before accepting Rottman’s view.

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