Supreme Court

ObamaCare's Defenders Keep Forgetting How Unpopular the Law Is

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At the Volokh Conspiracy, George Mason University law professor (and occasional Reason contributor) Ilya Somin highlights the weaknesses of the most common non-legal arguments made in defense of Patient Protection and Affordable Care Act, including the notion that a ruling against ObamaCare will undermine the legitimacy of the Supreme Court. As Somin writes:

Claims that a decision striking down the mandate will undermine the Court's "legitimacy" founder on the simple reality that an overwhelmingly majority of the public wants the law to be invalidated. Even a slight 48-44 plurality of Democrats agree, according to a Washington Post/ABC poll. Decisions that damage the Court's legitimacy tend to be ones that run contrary to majority opinion, such as some of the cases striking down New Deal laws in the 1930s. By contrast, a decision failing to strike down a law that large majorities believe to be unconstitutional can actually damage the Court's reputation and create a political backlash, as the case of Kelo v. City of New London dramatically demonstrated.

Read the whole thing here, including Somin's argument for why a ruling aginst the individual mandate would not be inconsistent with conservative judicial principles. For more on ObamaCare's unpopularity, see this post by Reaason-Rupe polling director Emily Ekins, which notes that just 32 percent of Americans have a favorable opinion of the president's health care overhaul.

NEXT: Seriously, This Is What Our Elite Journalistic Institutions Are Writing About

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  1. Really, we hate the fucking law already.

    1. That won’t be how lefties remember it after the law is killed. They will rewrite history to say that it was wildly popular.

      1. except it wont be killed, or converted into brocolli, unless SCOTUS wishes to *ALSO* stike-down the employeer mandate. if that happens, the gop best cum-up mit sum whopping good lies as replacements.

        1. What the fuck are you even talking about. People hate the mandate.

          1. John, you forget, what People like/dislike/want/dontwant is probably the least relevant factor in the process.

            1. See, this is where you all get confused. When the left purports to speak “for the people”, they don’t mean that they speak for each person in the country per se. Rather, they speak for the volont? g?n?rale or the “General Will.” An amorphous concept, far beyond the common man, but fully understood by those who want to rule us for our own good.

      2. I think I’ve told the story about my HS teacher who had an Ed.D. student in her class one year doing some research who tried to teach the class that JFK won in a landslide. She slapped him down pretty hard. But then again, she offered an elective class for which Atlas Shrugged was the textbook.

  2. the notion that a ruling against ObamaCare will undermine the legitimacy of the Supreme Court

    Is it opposite day?

    1. the notion that a ruling against ObamaCare will undermine the legitimacy of the Supreme Court

      It’s like the notion that a vote against TARP will undermine the legitimacy of congress.

      1. by-the-by, how IS congress’s legitimacy doin these days? Stellar-level approval I assume? Oh, it’s not? Color me surprised…

  3. So “legitimacy” is a popularity contest now?

    1. the law is unpopular by being a gross overstepping of constitutional boundaries on the power of congress to compel American citizens to action.

      by not rectifying that overreach, yes, the supreme court would lose legitimacy IMO.

      of course, for a majority of Americans who don’t have the time/willingness to invest in fully understanding the situation, it does boil down to a popularity contest. just like the elections that got us into this situation in the first place.

      well, now I need a drink.

    2. So “legitimacy” is a popularity contest now?

      Actually, if legitimacy is derived from the consent of the governed….yes.

      1. Is that how that reads? I always thought it was “Consent of McGovern.”

        1. This is why CREEP should be lauded for the Watergate burglary, they were trying to do the right thing and find out what McGovern wanted the president to do.

          1. If I’d been Nixon’s adviser, I’d have told him to say exactly that.

            1. More proof that in the battle between incompetence and evil, incompetence is usually the victor.

      2. All the SCOTUS has to do is make ruling based on the plain language of the constitution. It shouldn’t ever have anything to do with the popularity of their decision. The goverened, after all, have a mechanism for changing that plain language. Shoehorning in various bullshit that’s not in the constitution’s plain language is what destroys the court’s legitimacy.

  4. Including the notion that a ruling against ObamaCare will undermine the legitimacy of the Supreme Court.

    The Supreme Court defending our individual rights would delegitimize the Supreme Court?!

    If anything, the Supreme Court rejecting the White House’s attempt to undermine our individual rights might delegitimize the president.

    We can only hope.

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