Supreme Court

Could the Supreme Court Bolster Its Public Image By Upholding ObamaCare?

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In a column running under the headline "Supreme Court's Unpopularity Could Help ObamaCare," former Clinton Labor Secretary Robert Reich posits that the Supreme Court might attempt to salvage a bad reputation by ruling in favor of President Obama's health law:

The immediate question is whether the Chief Justice, John Roberts, understands the tenuous position of the Court he now runs. If he does, he'll do whatever he can to avoid another 5-4 split on the upcoming decision over the constitutionality of the Obama healthcare law.

My guess is he'll try to get Anthony Kennedy to join with him and with the four Democratic appointees to uphold the law's constitutionality, relying primarily on an opinion by Judge Laurence Silberman of the Court of Appeals for the District of Columbia – a Republican appointee with impeccable conservative credentials, who found the law to be constitutional.

This is an…odd argument, and not only because it assumes that the Court would rule to protect its reputation rather than based on its understanding of the law. For one thing, Reich notes at the beginning of the piece that the Supreme Court's public approval rating hovers at 44 percent. This is not particularly high, but relative to, say, Congress, which boasts newly risen approval ratings in the 17 percent range, it's not bad either. 

More to the point, if the Supreme Court was worrying about pleasing a wary public, ruling in favor of the health care law's mandate seems like a strange way to do it. A Reason-Rupe poll released in March reported that 50 percent of Americans reported an unfavorable view of the health care law. Just 32 percent reported a favorable view of the law. Pollster.com's multipoll aggregate currently shows opposition to the law around 47 percent, and support at 38 percent. When pollsters ask people about the mandate — the key provision under review by the high court — opposition is even stronger: An ABC/Washington Post poll recently showed that 67 percent of the public thinks the Supreme Court should strike down the mandate. In a New York Times poll last week, just 24 percent of respondents said they wanted to see the whole law kept in place. 

Upholding the law and its mandate, in other words, would not exactly be a crowd pleaser. Indeed, if the Supreme Court were to rule explicitly with public opinion, it would not only strike the mandate but probably take down the entire law as well: The same ABC/Post poll reported that of people who said they would like to see the law stay in place but the mandate struck down, 52 percent responded that if the choice were purely binary they would prefer to see a ruling against the entire law. 

Reich's argument is both wrong and self-serving: The only cohort which has suggested that the Court's legitimacy might be challenged by striking all or part of the law are the residents of the liberal legal bubble who simply can't believe that the court might seriously consider the mandate or any part of the law to be a violation of the Constitution. The Supreme Court would certainly please these establishment cheerleaders by ruling in favor of the law. But a majority of the larger public? Not likely. 

* Post updated slightly to include the NYT poll number. 

NEXT: Jacob Sullum on Regulation, Taxation, and ObamaCare's Individual Mandate

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  1. Why do the Supremes need to have a good public image? They’re not elected and their appointments are for life. Is Reich confused about how Supreme Court Justices are made? Cause I could email him a quick rundown of Article 3 if he needs help.

    1. It used to be the liberals were at least honest and said they didn’t care that the Supreme Court pursuing their agenda was unpopular. It was all about justice and all. Now, they can’t even do that.

      1. It used to be the liberals were at least honest

        when was that because, if memory serves, liberals typically bend over backwards to avoid saying what they really mean. They create cute euphemisms like “investment”, hoping the public won’t understand it means govt spending. At heart, the left is dishonest because most of its practitioners realize the public would balk at its agenda if the agenda were truthfully laid out.

    2. Why do the Supremes need to have a good public image?

      For me personally, it’s because they’re the last defense we have against our own government. Sure, they make bad decisions sometimes (read: Wickard), but generally they make what I consider to be good choices.

      1. Woops, I misread that “need” as “have” somehow. Fuck me.

  2. Don’t you understand? If the supreme court tells the public to go fuck themselves the document means what they say it does, the public will then understand that the court is above politics and respect it more. In short, the beating will hurt them more than it will hurt us. And we have to respect them for doing it.

    That is really all Reich is saying.

  3. Why would it not be that Roberts would try to sway one of the four liberal justices to vote to repeal?

    1. Wow sorry for the clumsy wording.

    2. One expects that the Supremes do talk to each other about cases…

      Well, except for Breyer, whose opinions sound like he’s been chatting with alien creatures from another dimension, but that’s a different story.

      1. Example? That sounds entertaining.

    3. Preposterous. Only conservatives are capable of being purely political animals. Liberals always vote the Truth.

  4. My guess is he’ll try to get Anthony Kennedy to join with him and with the four Democratic appointees to uphold the law’s constitutionality

    I like how he tries to add credence to his own wild (and hilariously wrong) speculations by making it seem like he, a supremely learned man, thinks Roberts is already carrying these speculations out. He managed to appeal to his own authority while presenting a very partisan and ultimately incorrect analysis. Quite a trifecta.

    1. well, he is a former Top Man.

      1. I don’t know anyone who voted for Nixon.

      2. “well, he is a former Top Man”

        He also represents the lollipop guild.

  5. I’m not sure which is scarier: that this “ruling by popularity” idea is even being considered, or that I wouldn’t put it past them.

    Kent Brockman: Now, here are some results from our phone-in poll: 95% of people believe Homer Simpson is guilty. Of course, this is just a television poll which is not legally binding. Unless proposition 304 passes, and we all pray it will.

    1. I think it’s scarier that Reich somehow believes that most people support Obamacare. Probably because he doesn’t know anybody who doesn’t.

  6. I seriously doubt that a group of people who are appointed for life give a damn about their “image.” I believe most of us would settle for 9 individuals who have actually read and understood the Constitution, and make decisions accordingly.

    1. I’m afraid all they get is the abridged version.

      General Welfare… Regulate Commerce… Necessary and Proper

      1. Necessary and Proper

        For now on to be known simply as the ‘cart goes

        1. before the horse’ clause.

    2. I think the position also brings with it a fair amount of self-backpatting for NOT following public opinion. Seems like a fair amount of famous cases are famous because they veered from public opinion. Granted, I’ll be like a Sarah Palin in headlights if anyone asks me to list examples, but whatever.

      1. Could you list some examples please?

        1. I know Catie Kouric and you, sir, are no Catie Kouric.

  7. ObamaCare isn’t going to cure dwarfism.

    1. Maybe we haven’t read that far into the bill yet.

    2. Robert Reich: Greatest political economist of all time.

      Oops, I meant Greatest *midget* political economist of all time.

      1. What the fuck is a “political economist?”

        I didn’t think the two were compatible.

        1. It means he’s a social scientist and an economist!

          Which makes it quite evident that you should disregard anything this hobbit has to say. His social science experience is backed by his economics experience, and vice versa. It’s a real symbiotic exercise in total cluelessness.

          1. social scientist

            lol’d.

  8. Well, that certainly was another case of TEAM BLUE projection: Reich explaining exactly how he would behave if he were in the Supreme’s shoes. He’d be very concerned with popularity. How fucking pathetic. Maybe a Supreme can give him an atomic wedgie.

    1. A narcissist? Concerned with popularity?! SAY IT AIN’T SO!

      1. Or perhaps a Dirty Cowboy.

  9. Clarence Thomas doesn’t give a fuck what the masses think. If he did care he might actually speak more

  10. I will put my mark down right now. It will be 6-3 (with the wise Latina voting with the majority) that the mandate is unconstitutional. And it will be 5-4 (with the wise Latina joining the dissent) that that invalidates the entire act.

    The whole act is going to go down.

    1. You obviously haven’t been Dean’d yet.

      1. Oh I have. I just don’t agree with him. We will see in about two weeks.

        1. If it goes down John, I might have to drive up there to buy you a drink. Because I know I’ll sure as fuck be celebrating that day.

        2. Yes, we will. Sotomayor voting to strike the mandate would be extraordinary; I don’t see it.

          I think if it goes down, it will be 5-4. If it is upheld, it will be 6-3, with Roberts voting to uphold to keep the Court from being exposed by a 5-4 decision, where a Justice with a conflict of interest cast the deciding vote.

          If I have to predict, I would say 5-4 the mandate is struck down, and a separate 5-4 (maybe 6-3) on severability saving a big chunk of the act.

          In a way, the real wild card is what nobody is talking about: what if they avoid the potentially revolutionary decision on the Commerce Clause, by striking down the Medicaid mandates on the states? If I’m being a political animal on the Court, I’d be looking very hard at that option.

          1. You assume they are all brain dead political partisans like it is Karl Rove and James Carville making the decision. And they are really not. Other than your argument regarding Wickard, which not even the SG bothered to make, I have yet to hear you make a legal argument. All of your arguments are just conjecture on how various partisans would split the baby. And I honestly don’t think the court works that way. They actually do respond to legal arguments. I don’t think their reasoning is anything like you think it is. If you look at this as a legal issue rather than just another partisan war, you can’t come up with the conclusions you are arguing for. You can’t say that the act can survive without the mandate. You either save the mandate or kill the act. And those are the two most likely results. And considering that nearly all of them were skeptical of the mandate in oral argument, that makes the mandate unlikely to survive.

            1. You assume they are all brain dead political partisans like it is Karl Rove and James Carville making the decision.

              No, I don’t.
              Other than your argument regarding Wickard, which not even the SG bothered to make, I have yet to hear you make a legal argument.

              Sure I have, on other threads. Why, only yesterday I gave you chapter and verse on severability.

              My bottom line is that this is a very hard law to overturn without seriously undermining existing precedent. Which says bad things about that precedent, in my opinion, and also is why this is a tossup case; SCOTUS does not like undermining its own precedent.

              You can’t say that the act can survive without the mandate.

              Sure it can. The constitutionality of most the act is unquestioned on appeal. From a jurisprudential perspective, that much of it can survive. From a practical perspective, of course, severing the mandate leads to an unholy mess. But that doesn’t mean the Court can’t leave it to Congress to sort out.

              1. You didn’t give me chapter and verse on severability at all. The case you cited didn’t stand for what you said it did. The test in the case was “could the act function as intended without the unconstitutional provision”. It it no way stood for the idea that the Supreme Court can at its discretion ignore severabilty. We are still left with the question of can the act function as intended without the mandate. And given the specific legislative intent not to put in a severability clause and the fact that allowing the act to stand sans mandate would bankrupt the entire insurance market, the answer to that question is clearly no. They are not going to just strike down the mandate. They are more likely to let the whole thing stand than that. Striking just the mandate makes no sense on anything other than inane political reasons. And that is not how they make decisions.

                My bottom line is that this is a very hard law to overturn without seriously undermining existing precedent.

                That is just simply not true. The court can raffirm Wickard by distinguishing these facts from Wickard. In Wickard the person engage in the act of growing wheat. No one mandated that he grow wheat. And as I stated above, the court would have to overturn its severability cases to just strike down the mandate.

                1. The case you cited didn’t stand for what you said it did.

                  Yes, it did. I cited it to correct your erroroneous assertion that SCOTUS had no discretion to sever a statute without a severability clause. Which is exactly what they did in that case.

                  The test in the case was “could the act function as intended without the unconstitutional provision”.

                  Well, once we get into “as intended”, we are deep into the weeds of judicial discretion. I’m not arguing that they shouldn’t sever; I’m arguing only that they can.

      2. RC’s analysis does frighten me, because I think he’s one of the wisest people on here.

        I hope John’s right.

      3. Sweet-deans.

    2. From your lips to gods ear.

    3. I think you are right. Just this morning I predicted Sotomeyor would be the sixth vote. Why else would she have asked where the limit was?

  11. This is an…odd argument, and not only because it assumes that the Court would rule to protect its reputation rather than based on its understanding of the law.

    For an example of this, one need only look at the case that has lead us to this point: Wickard.

    1. But Dean this would assume that libs know what Wickard actually is

    2. The better example is Schechter Poultry Corp. v. United States or the sick chicken case.

      That was where the court, which had previously rolled over for Roosevelt, finally put its foot down somewhere after the New Deal had lost a lot of its popularity.

      1. Well, Roosevelt did basically tell them that he was going to get his way one way or another. The Justices of that era probably did us a bit of a favor by playing dead for a while rather than having Roosevelt pack the court.

        Not saying it doesn’t suck, just that it probably sucks less than it could have.

        1. Raich is better, since it’s even more “ignore logic, be more feely”.

        2. If Roosevelt would have packed the court, it would have been a far clearer signal, at least historically, of the court’s illegitimacy subsequent to such an action. By simply caving to his whims, that illegitimacy is harder to substantiate, since “caving” is perceptual, not concrete.

          I wish they had shown some backbone and that we would have had a real Constitutional fight. Instead, those jellyworms fucked things up good.

          1. Roosevelt was (undeservedly) the most popular president in history, save for maybe George Washington. There would have been -no- fight; we’d just have reached the Worker’s Paradise by now.

            1. I know that there would have been no fight then. But I think threatening to pack the court vs. actually doing it is miles apart. Actually doing it would have been a far larger black mark on his record, historically speaking.

              1. RACIST!

  12. the Supreme Court’s public approval rating hovers at 44 percent [, which] relative to, say, Congress it’s not bad

    I’d say 56% of the country disapproving of “the last defense we have against our own government” is not good.

    1. Better than (some polls) the President and (all polls) congress.

    2. That is an indication that they are doing their jobs. If you are protecting the country from mob or majority rule, you are not going to be popular with the mob.

    3. Correct – I would suspect many that have a poor opinion of the SCT hold such a stance because the Court does not do enough to defend liberty – the malignant dwarf wants people to think everyone who disapproves of the Court is someone who wants it to run hard Left.

      1. I would suspect the opposite, that it has to do with Citizen’s United.

  13. The immediate question is whether the Chief Justice, John Roberts, understands the tenuous position of the Court he now runs.

    “Say, that’s a nice court you’ve got there; be a pity if something happened to it.”

    1. “Things break, Justice”

      Crash!

      “Oh, sorry my brother Krugman is clumsy”

      1. “Oh, sorry my brother Krugman is clumsy”

        Krugman: “BROKEN COURTS MAKES STIMULUS, KRUG SMASH!!!! RAWRRR!”

        Thug#1: “His understanding of stimulus might be a bit dull, but he sure can smash.”

        1. BUT SOMEONE HAS TO MAKE GLASS TO REPLACE ALL THESE BROKEN WINDOWZ!!!111

  14. I could see them striking down the mandate, but not the whole thing, forcing our heads deeper into the PortaJohn of socialized medicine.

    But how could they strike down the mandate without betraying their Golden Calf, the Almighty Commerce Clause, which both the left an the right have been using to ass-fuck us in the name of illiberty?

    1. But how could they strike down the mandate without betraying their Golden Calf, the Almighty Commerce Clause,
      Easily – They could say that citizens can’t be forced to buy any products, and that if the government wanted to mandate insurance coverage, it would have to levy taxes and provide such coverage, ala Medicare.

      1. No, I get that. I’m saying how would they argue that without recognizing limits to CC? Maybe equal protection?

        1. Action vs. inaction. It’s that simple.

          1. The action v inaction argument is a difficult one, as you have to define the market that the person is active in to trigger Commerce Clause jurisdiction, and (maybe) you have to define the scope of the power that can be exercised based on that action. A real can of worms.

            Two examples:

            (1) The market is “interstate commerce” generally, so the Commerce Clause applies to anyone who is active in interstate commerce in any way (which is to say, everyone). And the power that can be applied to everyone is the full Commerce Clause. This approach leads to upholding ObamaCare.

            (2) The market is the market for the product/service being mandated, so that an exercise of the Commerce Clause to mandate a particular purchase applies to people who are already active in that market anyway. The scope of the power is limited to your activities in a market that you are active in anyway. This is pretty much what is being pushed by the challenge.

            The problem with this argument is that it throws out whole volumes of the Federal Register. Many, many mandates are on the books that require someone active in market X to purchase goods and services in market Y. For example, if you run a widget manufacturing facility (market X), you have to buy truckloads of safety equipment (market Y).

            1. Your argument doesn’t work RC. All of those regulations you talk about apply to people who voluntarily enter a market. If you don’t want to buy the safety equipment, don’t make widgets.

              The solicitor general didn’t even make your argument. Is he stupid? No. He didn’t make it because no one but you can get passed the above distinction. That argument doesn’t work and no one but you thinks it does.

              1. All of those regulations you talk about apply to people who voluntarily enter a market.

                Under option 1, we all voluntarily enter a market, because everyone in this country buys goods or services that fall under the scope of the Commerce Clause under Wickard.

                What the Court has never really had to do is own up to the fact that Wickard means we are all subject to the Commerce Clause, and they have given no basis for limiting Congress’s power under the Commerce Clause to something related to whatever interstate commerce we are actually engaged in.

                If you don’t want to buy the safety equipment, don’t make widgets.

                To paraphrase, if you don’t want to active in market Y, you can’t be active in market X.

                Depending on how you define these markets, OCare is either Constitutional, or unconstitutional. Option 1 defines them broadly, and option 2 defines them narrowly.

                If Congress can require me to become active in a market (for safety equipment) because I am active in a completely different market (widgets), why can’t Congress require me to become active in a market (for health insurance) because I am active in a completely different market (food, clothes, etc.)?

                The solicitor general didn’t even make your argument. Is he stupid?

                I wasn’t impressed. Not many people were.

                1. If Congress can require me to become active in a market (for safety equipment) because I am active in a completely different market (widgets), why can’t Congress require me to become active in a market (for health insurance) because I am active in a completely different market (food, clothes, etc.)?

                  For the same reason the court destroyed the Soliciter General in oral argument. There is no limiting principle there. The mandate everyone who breaths is subject to it. No one makes any affirmative act to subject themselves to regulation. That is different than the regulatory state where you are only subjected to it if you choose to engage in some activity.

                  Can you make the argument that an activity that everyone by necessity does is the same as choosing to start a business or sell a product? Sure. But it is a stupid and unnecessary argument. Why would they ever make such a stupid comparison when all they have to do is point out the obvious distinction between voluntarily entering a market and doing things like buying food that are required to live?

                  The bottom line is that they can strike down the mandate without killing the regulatory state making the distinction above. You are giving a false dilemma. The court doesn’t have to kill the regulatory state. They just make distinguish this on its facts and move on.

                  1. For the same reason the court destroyed the Soliciter General in oral argument. There is no limiting principle there.

                    That’s my point: current precedent doesn’t contain a meaningful limiting principle.

                    SCOTUS will have to create one to overturn ObamaCare.

                    Creating a limiting principle raises the question of what previous cases approving Commerce Clause actions would fall outside the limiting principle. It will be hard to create a limiting principle that doesn’t call into question previous cases. I’ve tried to show how limiting principles proposed by various people would call into question existing, approved regulations.

                    That’s why I think this case is such a challenge for the Court.

                    Now, they may fall back on the old “limited to its facts” dodge. In fact, if they overturn, I expect them to.

        2. “For the commerce clause to apply, the party(s) have to be willing. In Wickard, one party coerced the other party to sell grain at a lower price due to decreased demand. In the case of health insurance, the consumer compelled to purchase a product, potentially against his own will. This is not commerce.”

          It’s easy to lie when you can make up the words as you go along.

      2. What and ruin their sparkling public image?

        No wonder you’ve never been asked to sit on the Supreme Court. You just don’t get it.

        1. I’d be a lot more satisfied had the administration chosen to nationalize health care with Medicare as the model. At least it would’ve made sense, and I could oppose it on the grounds that I simply don’t believe it’s the government’s job to provide health insurance.

          As it stands, the threat of the government being able to compel me to purchase a product against my will is repulsive, because you *know* it won’t stop with health insurance.

      3. They could say that citizens can’t be forced to buy any products,

        That particular ruling would be quite revolutionary, as it would gut the regulatory state that they have been giving their approval to for generations.

        The regulatory state spends a great deal of energy telling people what goods and services they have to buy if they don’t want to get shut down.

        1. That particular ruling would be quite revolutionary, as it would gut the regulatory state that they have been giving their approval to for generations.

          No it would not, see above. the regulatory state allows everyone an opt out by not engaging in the activity that they are regulating. There is no way not to engage in living.

          1. the regulatory state allows everyone an opt out by not engaging in the activity that they are regulating.

            This is probably the best argument for overturning ObamaCare. Oddly, it is one that the plaintiffs never really made. Does that mean they are stupid?

            It basically requires you to say that mandates can only be imposed if they are accompanied by a prohibition (your opt out is enforcable against you). That is, you can avoid the mandate for safety equipment by opting out of having a widget factory.

            So, Congress can impose a mandate to buy health insurance, if it is accompanied by an opt out (you don’t have to have health insurance if you opt out of getting health care). IOW, you are prohibited from getting health care if you are uninsured. Congress didn’t do that, so the law in unconstitutional.

            1. They didn’t make that argument because they didn’t have to. It is only relevant in response to your argument that over turning the mandate kills the regulatory state.

              And sure they could do it with an opt out provision. They could mandate that say every business provide health insurance to its employees. They could do it as a tax and the person could avoid buying the insurance by paying the tax. But they can not do it by requiring everyone to buy the insurance no matter what.

              1. It is only relevant in response to your argument that over turning the mandate kills the regulatory state.

                Actually, its not. Its an essential element of the argument for Commerce Clause mandates in the first place. The nexus with interstate commerce that triggers the mandate in the first place is your decision to engage in interstate commerce in a particular way, remember? Choosing not to engage in that activity is the opt out.

                The fundamental flaw of ObamaCare is not that it applies to people who aren’t engaged in interstate commerce, because everyone is. It is that, unlike other mandates, it applies to people who are not engaged in a particular kind of interstate commerce, which is to say, that you cannot opt out of it by choosing not to engage in that kind of commerce. The activity/inactivity argument kind of gets at this, but not very well.

            2. We agree on this a lot more than you seem to think, John.

              I’m mostly just not very impressed with the argumentation on both sides. The SG did a terrible job of showing SCOTUS just how dangerous overturning OCare would be to SCOTUS precedent. The states did a mediocre job of explaining how this is different from other mandates in a way that gives the Court a very discrete and safe limiting principle.

  15. Robert Reich is an avid supporter of ObamaCare because he’s worried about the little people common man.

    1. I see what you did there.

    2. That’s not nice.

      1. Hey….comedy is not pretty!

  16. I think what Reich means is that the court would enhance it’s credibility by issuing rulings by going against BOTH popular opinion AND their political alleigances. That is, the court’s conservatives. Liberals aren’t expected to rule against their political alleigances.

  17. Has Reich considered that, given that the court has already ruled unanimously against the president on a couple of occasions, that even the liberals on the court might be highly suspicious of the administrations respect for law, generally?

    Without some notion of rule of law, the Court is meaningless and irrelevant. The Obama administration’s evident contempt for rule of law (in favor of rule by personal whim of the Tyrant, as per his little Star Chamber) gives them all the incentive they need to make his life as miserable as possible, whichever wing they hail from.

    1. Not happening. Kagan, Sotomayor, Ginsburg, and Breyer can be counted on to be political hacks.

  18. Is it wrong that whenever I read about Tyrion Lannister in the A Song of Fire and Ice series I picture Robert Reich? (I haven’t seen the TV series.)

    1. Yes that is wrong. Tyrion has some redeeming qualities.

  19. People like Reich (read: liberals)appear to lack self awareness, as though they’re just feeling their way through life.

  20. WHo gives a shit whether the court is seen favorably or not?

    From my view, it seems that have a court on the public’s shit list is a court that actually doing it’s fucking job by limiting tyranny against individuals.

    If the court is telling the other two branches that it cannot do something, it’s doing EXACTLY what it is designed to do. And if that makes them unpopular, so fucking what?

    1. Sorry about the horrific mangling of our language in that last post.

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