The Healthcare Decision: First Reaction   3 comments

Although we’ve emphasized that it takes time to assess the public’s reaction to a Supreme Court decision—and the effect of that reaction on the public’s goodwill toward the Court—blogs operate in the here and now. So we venture forth with some initial, tentative thoughts.

If opinion polls are a reliable indicator, the public may be disappointed in the outcome of the case—a New York Times/CBS News poll showed that 41% wanted the law struck down altogether and another 27% wanted the individual mandate struck down while keeping the rest. But the Court has had many opinions over the years that have gone against the trend in current public opinion, and in the past that hasn’t caused any lasting damage to the Court’s overall support from the public. In fact, one of the features of the Supreme Court in the past has been its ability to make unpopular decisions without losing public legitimacy, at least in part because the Court has been widely viewed as above politics.

We had expressed concern that this might change if the public perceived the Court had merely acted politically in handling the healthcare cases. Indeed, a Washington Post/ABC News poll showed that 50% thought the Court would rule based on “partisan political views.” So the public was initially skeptical about the fairness of the process.

What does today’s opinion tell the public about the fairness of the process the justices followed in reaching their decision? The initial news coverage has predictably focused on two aspects of the Court’s decision: (1) the outcome upholding the Affordable Care Act and (2) that the majority opinion was written by Chief Justice John G. Roberts, Jr. Indeed, in the big-picture view, which is where public opinion is formed, those are key points. And that means that the Chief Justice—the justice whose very role makes him the face of the Court—will be perceived by many as having decided the case on something other than “partisan political views.” That could certainly reinforce the historic public vision of the Court as an institution that places adherence to the rule of law above politics. In addition, whenever anyone paints the Court in partisan terms, members of the public may think back to the Chief Justice’s key vote in upholding the Affordable Care Act and conclude that the Roberts Court is not simply a political institution making decisions based on policy preferences rather than on the law and evidence.

The Court’s decision confirms our previously expressed view that the Chief Justice indeed had an open mind during oral argument, and that his questions were fair ones to be asked of both sides. In these days of pundits, many commented publicly that it was nearly a foregone conclusion that the Court would find the entire statute unconstitutional—based on what was observed at oral argument. Perhaps this high-profile example that such guesses can be wrong will also be helpful; the public may realize that oral arguments are part of the process of learning about and exploring the issues, not deciding them. An open process in which issues are explored, parties’ positions are better understood, and the Court then retires to consider everything it has heard, fulfills public expectations for procedural fairness.

We’ve only looked briefly at the written opinions at this point. The justices receive mixed grades in terms of being respectful, but—at least in their introductions and conclusions—they have tried to explain basic concepts involving the exercise of government power under the Constitution. But news-media commentary is likely to give prominence to those instances where one or more of the justices indulged in sarcasm and belittled the other side of the decision.

That leads us to wonder whether the justices might yet benefit greatly by writing more for a lay audience than for each other or for constitutional law scholars. When he wrote the draft opinion for Brown v. Board of Education, Chief Justice Earl Warren set out to write an opinion so short that it would be reprinted by newspapers and read by the public. Warren’s memo to his fellow justices accompanying the draft told his colleagues that the draft had been “prepared on the theory that the opinion[] should be short, readable by the lay public, non-rhetorical, unemotional, and, above all, non-accusatory.” He wanted to make sure that the opinion would be understood and accepted by the public.

Perhaps the Affordable Care Act has so many more moving parts than the concept of segregated schools had that it was necessary for the justices to issue opinions totaling 193 pages to decide the case and explain the decision. Even so, we know that public interest in the healthcare cases was high, and many more citizens would have read the opinion—and gained further appreciation for the Court—had the justices written shorter opinions more tailored toward a lay audience. Chief Justice Warren’s opinion in Brown, which took up only 14 pages in the United States Reports (including the syllabus prepared by the reporter to summarize the opinion) may remain a model of succinctness and clarity that modern courts simply do not approach.

In sum, the combination of a well-publicized oral argument that was fairly handled and allowed issues to be explored and a ruling in which the most prominent justice went against partisan stereotyping may augur well for long-term public support for the Court. Time—and future events—will tell.

Steve Leben, Kevin Burke, David Rottman & Tom Tyler

3 responses to “The Healthcare Decision: First Reaction

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  1. The first two polls showing public reaction to the Supreme Court’s ruling find the public split roughly evenly between approving and disapproving the decision. A USA Today/Gallup Poll survey of 1,012 people (margin of error ± 4%) showed 46% approved and 46% disapproved. Democrats approved (79%-16%), Republicans disapproved (83%-13%), and Independents narrowly approved (45%-42%), though within the margin of error. A Newsweek/Daily Beast survey of 600 likely voters (margin of error ± 4%) found that 50% disapproved the decision and 45% approved it.

    As the notes on the Gallup Poll indicate, surveys taken in a single day, as these were, are subject to more variability than polls taken over several days. So the caution we’ve given about making any early conclusions is especially well taken in making conclusions from these initial surveys. Still, they’re worth noting. We’ll keep following public reaction.

    Steve Leben

  2. Let me add separately the commentary on the Newsweek/Daily Beast and Gallup Poll websites about how the public believes politics factored into the decision.

    From the Gallup Poll’s narrative:

    “Politics a Factor”

    “Nearly two-thirds of Americans see politics as having a heavy hand in the ruling, possibly reflecting a knee-jerk belief among Americans that politics is always a factor. Alternatively, it could specifically reflect the fact that eight of the nine justices voted in politically predictable ways. Or it could reflect a belief on the part of some Americans that Chief Justice John Roberts’ decision to side with the four liberal justices may have been influenced by the substantial political implications of the case.

    “In any event, 64% of Americans say politics played too great a role in the court’s decision, while 29% disagree. The vast majority of those who disagree with the decision, 84%, believe politics played too great a role, but so do nearly half of those who agree with the decision, 47%.

    “Accordingly, 80% of Republicans believe politics played too big a role, compared with 67% of independents and 47% of Democrats.”

    Steve Leben

  3. Pingback: The Supreme Court, Obamacare, My Reaction | Colin T. Nelson

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