So we will need to wait until Thursday for the Supreme Court’s decision on the Affordable Care Act. Interest runs high. Today, nearly 100,000 people signed on to a live blog from Scotusblog.com to see whether the Court had ruled on the healthcare case and, if so, in what way.
We previously considered the healthcare cases from a procedural-fairness viewpoint. We gave the Court a passing grade for procedural fairness at oral argument: the two justices most closely watched, Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy, asked questions of attorneys both for and against the law, and each tried to explore the issues in an even-handed way. (See our April 3 blog entry.) We also noted that diffuse, long-term support for the Court has usually stood resilient in the face of short-term disagreements over specific cases. (See our April 13 blog entry.)
But there are also reasons for concern—that the Court’s decision in the healthcare cases may prove particularly significant in their impact on long-term public support for the Court as an institution. Gallup checks public approval of the Court before each September, just before the Court begins its new term. Approval in 2011 was down to 46%, down 15% in two years and lower than all but one other reading since 1973. At the same time (Sept. 2011), Gallup reported historically high levels of negativity toward all of the federal government, with 81% dissatisfied, an historic level.
One important factor in maintaining public support for the Court is the public’s perception that their concerns and interests are fairly considered there. But that’s not the expectation as we await the healthcare decision. A Washington Post-ABC News survey in April showed that 50% thought the Court would rule based on “partisan political views,” with only 40% saying it would rule “on the basis of the law” and the remaining 10% undecided.
Public reaction to two past decisions offers some insight into the likely impact of next Thursday’s ruling on public opinion; they suggest caution against over-reading any immediate reaction in public opinion to the healthcare decisions. The first is Kelo v. City of New London, the Court’s 2005 eminent-domain decision. It was coincidentally issued one day before Gallup began a three-day opinion survey about Court approval, and the 42% approval rating (compared to 48% disapproving) is the lowest measurement for Court approval during the history of the poll (1973 to present). But the Court’s approval quickly rebounded—to 48% by the annual survey in September 2005 and back to 60% a year later. The second is Bush v. Gore, the 2000 decision that had obvious political overtones. But the Court’s approval ratings were 62% in September 2000, 59% in January 2001, and 62% in June 2001, showing no ill effects on overall public approval.
Even with these cautionary words, however, we believe the healthcare cases may present a more significant problem—and opportunity—for the Court with respect to maintaining its long-term, diffuse support (what we sometimes call its legitimacy). Interest is high, and public skepticism with its national government is high too.
Polls have also shown that the public wants to see some or all of the law struck down. A New York Times/CBS News poll earlier this month had 41% wanting it struck down altogether and another 27% wanting to keep the law but overturn the individual mandate to buy insurance. But there still are millions of Americans who want the entire law kept in place, and all will be watching to see how their concerns have been taken into account.
The Court could improve its standing if it has reached consensus by at least six justices, which would demonstrate its ability to reach consensus on neutral principles that transcend party affiliation. In addition, to the extent that the Court’s written opinions honestly acknowledge the sincerity of opposing views, while carefully explaining the basis for the decision (or dissent), they will foster the appearance of a respectful institution that takes the people’s concerns seriously. In short, the justices will be viewed as having followed a fair process to reach its decision.
Steve Leben, David Rottman & Kevin Burke
Procedural Fairness For Courts and Judges 
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