Commentators are already suggesting that there could be a backlash against the Supreme Court if it rules by a 5-4 vote that the so-called individual mandate is unconstitutional. In part for reasons that Sandy Levinson has already identified (with support from an intriguing paper by political scientist James Gibson), however, the opposite may be true. The mandate is incredibly unpopular and a majority of Americans believe not only that it is unconstitutional but also that the Supreme Court will hold it unconstitutional. And many Americans want the Supreme Court to act like a super-legislature. (“Super” in the senses of both “above” and “better.” “Legislature” in the sense of both making and unmaking the law.) This desire for the Court to act as a super-legislature stems less from ideological or partisan understandings of the relationship between the Court and the elected branches than from a sense that the Court should speak for the people when it speaks in the name of the Constitution.
A recent Kaiser Family Foundation poll of a nationally representative random sample of over 1,200 people asked what factor should play the most important role in the justices’ decision in the healthcare case. The top answer was “the views of average Americans,” which came in at 34%. That beat out “the justices’ analysis and interpretation of the law,” which came in at 29%.
The remaining four choices were “whether the justices themselves hold liberal or conservative views,” “national politics,” “whether a justice was appointed by a Republican or Democratic president,” and “the justices’ past personal experiences.” None of these choices received more than 5% agreement. The minimal role that people think ought to be played by these last four factors may seem like good news. But the aggregate percentage for these four factors taken together is 16%. When added to the 34% who think that the views of average Americans should play the most important role, a full 50% of respondents to this question think that something other than the justices’ analysis and interpretation of the law should be paramount in the Court’s consideration.
Answers to the question about what should play the most important role indicate what people think should give way when push comes to shove, but it need not exclude a significant role played by the law. When asked what should play a major role, the most popular choice was “the justices’ analysis and interpretation of the law,” receiving 53% agreement, followed by “the views of average Americans,” with 50% agreement.
Interestingly, only 27% of respondents thought that the views of average Americans would play a major role in the justices’ deliberations. In other words, a much greater percentage of respondents thought that the views of average Americans should play a major role (50%) than thought that those views would play a major role (27%). While some legal elites criticize the Court’s conservative Justices for appearing to traffic in talk-radio hypotheticals, that sort of permeability between popular constitutionalism and Supreme Court decisionmaking seems to be what many Americans want.
Critics of a potential 5-4 holding that the so-called individual mandate is unconstitutional also overlook the possibility of a backlash against the Supreme Court for upholding the law. Respondents to the Kaiser poll were asked how they would feel if the mandate were ruled unconstitutional. Just 12% said that they would be angry, compared with 17% who said that they would be enthusiastic. Another 30% said that they would be disappointed but not angry, but 32% said that they would be satisfied but not enthusiastic. By contrast, respondents were asked how they would feel if the mandate were ruled constitutional. A whopping 25% said that they would be angry, while only 13% said that they would be enthusiastic. Another 30% said that they would be disappointed but not angry, while 26% said that they would be satisfied but not enthusiastic. When a nationally representative poll says that more than double the percentage of people will be angry if a law is upheld than if it is struck down, and 55% of respondents say that they will be either angry or disappointed with a ruling upholding the law, it is hard to see what kind of significant backlash would be generated by a decision holding the law to be unconstitutional.
This is not a case where the Court needs to think twice to rule “hey, give ’em what they want.”