Supreme Court

Will the Unpopularity of ObamaCare Matter to the Supreme Court?

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At the Volokh Conspiracy, Randy Barnett highlights a new USA Today/Gallup poll which finds that a majority of Americans disapprove of the Obama administration's health care overhaul. As the Gallup description reports, "Americans overwhelmingly believe the 'individual mandate,' as it is often called, is unconstitutional, by a margin of 72% to 20%."

Let's assume these numbers are accurate. Will they matter to the nine justices of the Supreme Court when they actually vote on the individual mandate's constitutionality later this term? As the old saying goes, the justices do follow the election returns. Plus, as Barnett observes, if the numbers are correct, "these results do suggest that the Court is unlikely to face a strong backlash should it hold the individual mandate unconstitutional." We'll see.

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61 responses to “Will the Unpopularity of ObamaCare Matter to the Supreme Court?

  1. No, the numbers of a survey are not of any consequence, nor should they. Next dumb libertarian question

    1. the numbers of a survey are not of any consequence

      funny stuff.

      Perhaps you should listen to advocates on the bench (like Stephen Breyer) of the “living constitution”. They have actively reinterpret the constitution to reflect what they perceive as changing public opinions and attitudes, and they outright say that is the reason why they do it.

      1. Perhaps the point of rather’s comment is that polls are not ethics. One could further submit that only unthinking brutes rely on public opinion (or chat-room mobs) to guide their actions.

        1. One could further submit that only unthinking brutes rely on public opinion (or chat-room mobs) to guide their actions.

          Unthinking brutes….like rather who always brags about how many “hits” she gets on her blog?

          “I matter!!! Google search bots tells me so!!!”

          1. I have no idea. But way to focus.

            1. http://media.pennlive.com/mids…..Phelps.pdf

              Yes, I’d like to bitch-slap every member of their  church but SCOTUS has to look at the whole picture, and no, judgments are not popularity contests; sometimes the POS win

              1. Talk to yourself some more, rectal. You’ve almost convinced everyone of us. Five or six more handle changes should do it.

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  2. Will the Court care? Yeah, some. The Court’s number one priority at all times is maintaining the legitimacy and influence of the Court.

    Hell, they’ve buckled to public pressure in the past, like when they threw out 140 years of Commerce Clause jurisprudence at FDR’s behest.

    The Court would be less likely to overturn the mandate if it was wildly popular, so I think they are more likely to overturn it if its wildly unpopular. Call it a 5% swing in the probability.

    1. I think yes. In some ways, that old “deference to the legislature” is a roundabout way of deferring to the public will. Not that it’s the only influence, but one should never forget that justices are political animals, too.

    2. Agreed, but only with the part that if it it was wildly popular they would be less likely to overturn. Only because popular opinion would be backing up “deference” to the legislature.

      When a bill is wildly unpopular, at best it balances out the courts tendency to defer to the legislative branch.

  3. The Constitution is an elaborate sham. It gives our rulers a holy icon to hide behind while pretending that they must uphold our supreme law.

    Never forget that the Constitution is not understandable. It is frequently interpreted by a five-to-four coin flip.

    1. Never forget that the Constitution is not understandable.

      Bullshit. It is mostly written in clear, easy to understand language.

      It is frequently interpreted by a five-to-four coin flip.

      This is a consequence of SCOTUS unconstitutionally claiming the supreme power to interpret the constitution however they see fit, with political appointees to the court made by partisan presidents and legislatures.

      This splitting of the court does not mean the constitution is hard to understand — it means the appointees on the court are usually not doing their duty to read the document as written.

      1. When five Supreme Court Judges rule that the Constitution means something and four Supreme Court Judges rule that the Constitution means the opposite thing, something stinks.

        1. Well, when you take a 5 page document that has been amended 26 times, or so and try to make it the document that controls all government action, you’re going to end up with quite a few legitimate disputes.

          Which is not to say that everything the Supremes have done is great logic or even remotely connected to the text of the Constitution, the manual to my cell phone is longer than the US Constitution. There’s going be legitimate issues.

          1. The manual to your cell phone never has to be interpreted by nine scholars. If it did, it would be as useless as the Constitution.

      2. You are right, protefeed. The Constitution was carved on stone tablets and came down to us from the mountaintop.

        1. The Constitution was carved on stone tablets and came down to us from the mountaintop.

          It is as close to it as humankind can come to….plus the founders put in a little clause that allowed it to be changed through amendments.

          Anyway it is not surprising that a branch of government without money and without guns is reluctant to say no to the branches of government that have the guns and money.

          Under that scenario it is a testament to the power of the constitution that the US government pays any attention to it at all.

          1. Now you can spend your time studying the intentions of “the founders”: they were holy men. That is fine for someone like you who can’t think for himself.

            Burn the Constitution now!

    2. Never forget that the Constitution is not understandable.

      It was written over 50 years ago!!!

      No way anyone can understand oldy englishy speaky from that far back!!!

      Ezra Klein told me so!!!

      1. I still don’t know why nobody will take libertarians seriously.

        1. Ezra Klein is a libertarian?

          EZRA KLEIN ISN’T TAKEN SERIOUSLY?!?!??!?!

          1. I meant you, of course.

            1. Next time the God-King-in-Chief ejaculates into your mouth, at least make an effort to clean the excess off and hide it.

              1. Sensitive little fella, aren’t you.
                Maybe you should play in the toddler’s sandbox.

        2. I still don’t know why nobody will take libertarians seriously.

          This is part of the drinking game, yes? If not, it should be.

          1. I think you will drink when you wish, and not when the mob tells you to. Or maybe I give you too much credit.

            1. You are mysterious….

              Please sign me up for your news letter as your intentionally unspecific and directionless criticisms intrigue me.

              1. He’s furiously beating off to photographs of FDR’s coronation. He’s far too busy to make valid points.

  4. I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion.

    1. Go ahead and hope all you want.

  5. “these results do suggest that the Court is unlikely to face a strong backlash should it hold the individual mandate unconstitutional.”

    The left wing media will freak the fuck out…count on it.

    But that being said no one else will give a crap.

    1. They will have a big debate over which ruling is worse: this or Citizen’s United.

      They will claim that the Court overturned Wickard and that the FDA will have to be dismantled.

      1. That sounds like a feature to me.

  6. As long as there’s an atoll of capitalism within our ocean of government-controlled healthcare, reform is never complete.

    1. What they really need is Dennis Hopper and the Smokers. They’re champs at taking down atolls.

  7. Will the constitutionality of Obamacare matter to the Supreme Court?

    1. Is that a rhetorical question?

    2. Thread winner.

  8. The individual mandate is unpopular with the public, but the shall-issue and pre-existing-condition protections are very popular with the public.

    If the SCOTUS is going to go with popular opinion, they will treat the individual mandate as severable, and strike it out without touching the non-discrimination provisions in the law.

    Fine by me. Helloooo, MediCare for All.

    1. Since when has getting free stuff ever been unpopular with the public?

  9. I’m interested in this angle of the unconstitutionality of the mandate-

    Does the ObamaCare individual mandate make contracts unenforceable?

    Constitutional law professor Elizabeth Price Foley, who is the executive director of the Institute’s Florida Chapter and who co-authored IJ’s brief, said, “The individual mandate violates a cardinal rule of contract law?to be enforceable, all agreements must be voluntary. The Framers understood this, and would never have given the federal government the power to force individuals into lifelong contracts of insurance. The Court should not allow the government to exercise this unprecedented and dangerous power.”

    http://www.ij.org/about/4315

    1. Hmmm. Interesting point perhaps. How would comsumers be violating their end of the contract? Not paying premiums on time?

      I think insurance companies are still allowed to drop you if you stop paying premiums, but it does make it interesting if the legislature later rules otherwise. Heck, if they can make companies “insure” you for things that have already happened, they can certainly force them to “cover” people who aren’t paying their bills.

  10. This is not a comment on the constitutionality of Obamacare.

    SCOTUS should not listen to the majority, that’s not its job. It is supposed to be counter-majoritarian. Is this a problem? Well, when Brown v. Board happened, a majority of people in the South supported segregation… just saying.

    1. I think it is the more left side of the bench that tends to hear from the public what it wants to hear then decides…the right side of the bench doesn’t.

      So on this issue where we expect the left side (living constitution) to support obamacare and the right side (originalist/testualist) to not support it I think we can expect little or no help from the opinion polls.

      1. Could be a split decision, with the right side of the court ruling to overturn the mandate and not sever it, the left side ruling to uphold the mandate, and the center part ruling to overturn the mandate and sever.

  11. “Fine by me. Helloooo, MediCare for All.”

    The govt. imposing the costs medical welfare on every taxpayer, while wrong, is less evil than forcing each citizen to buy health insurance against his will.

  12. Does anyone think that the court upholding the mandate will cause a Citizens United-type backlash against the court?

    1. Does anyone think that the court upholding the mandate will cause a Citizens United-type backlash against the court?

      Yes. But it will be impossible to measure. Obama is going to lose no matter what and if the court upholds it then the republican house, republican senate and republican president will repeal it.

      Don’t get me wrong…this is no endorsement of the republicans. After they repeal it they will start a war and flush the economy down the toilet.

      1. On which planet is Obama going to lose the ’12 election? A loss by just 3% would be a coup for the GOP.

    2. It will renew the Republican impetus to have it repealed, and possibly be enough to defeat Obama.

      I’m not sure if it would cause an overwhelming popular backlash. That might not take effect until the mandate actually kicks in and people find themselves getting fined in their tax returns.

  13. If the liberals on the court have any sense of party loyalty, they’ll strike down the mandate in order to give Obama a fighting chance.

    The bailouts, Solyndra, and a mandate to give money to health insurers combine quite effectively into a “Obama wants to tax you to give money to his rich friends” ad campaign in October.

  14. Duh. The individual mandate is the part where they have to pay for something. Of course the public doesn’t like that. They have no issue with a the other freebie mandates (26 year old freebies, low income freebies, high income freebies, etc etc etc).

    1. A Public bias that pushes government to buy stuff that no one pays for and not buy stuff that the public pays for…

      Yup that is the government the public wanted and has.

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  16. Imagine the win that would ensue if we had a Ron Paul-packed Supreme Court.

    1. Have you met my little friend, the Tooth Fairy?

    2. “Imagine the win that would ensue…”

      The win? Or the whine?

  17. Predictions as to how the ruling will play:

    If it is upheld, it will be bad for the Democrats, because it will renew the drive to have it repealed. The Tea Party fervor will be renewed just in time for the election.

    If it is overturned, it will coversely be good for the Democrats, but only slightly. Some Democrats will try to push for single-payer, and it will remove one major impetus for voting Republican. However it will also be bad for them in the sense that having a major piece of legislation declared in violation of the constitution is a bit of a slap in the face.

  18. accurate. Will they matter to the nine justices of the Supreme Court when they actually

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