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.