On Monday, the Supreme Court hears oral argument in the expected-to-be-landmark case considering a key provision of the constitutionality of the Affordable Care Act. At issue is whether the requirement that everyone purchase health insurance or be subjected to a federal tax/fine is beyond congressional authority. Anticipating the great public attention that will surely attend the hearings and the Court’s decision (likely to be handed down this June), the Washington Post declared this week,Expect demonstrators to brandish placards reading “Hands off my health care!” and demanding a repeal of the 2010 health-care law. Expect doctors in white lab coats and patients who have suffered at the hands of insurance companies to hold news conferences lauding the law’s consumer protections and pleading for its preservation.The political science literature has long debated whether the Supreme Court pays attention to, or is sensitive to, public opinion about the cases it hears. A growing literature argues that courts must pay attention to public opinion in order to avoid overstepping the boundaries of what will be accepted by the public. While not following trends in public opinion knee-jerk style, there is mounting evidence that courts are aware of, and sensitive to, the broad contours of mainstream mass opinion. Because courts ultimately rely on political acquiescence to, and enforcement of, their decisions, they have an incentive not to exceed those boundaries, for fear of an erosion of their public support and the consequent public pressure on political actors to enforce their decisions. [emphasis added]
In my recent book, I argue that the Court can learn about those “broad contours” through the political process. I focus on the use of “Court-curbing bills” in Congress (legislative proposals to restrict judicial power) as indicators from elected officials that the courts are losing public support. I find that when the Court can credibly infer from those indicators that public support is waning, it will engage in a type of strategic self-restraint. While the focus of my study was limited to one type of indicator, “Court-curbing bills,” public campaigns, presidential statements, and protests are all part of the sources of information the Court has about where it stands with the public.
This insight raises a question: how can the Administration best defend the ACA, and how can its opponents best attack it, beyond the confines of legal briefs and oral argument in the courtroom? My claim is that a potentially consequential strategy is to rally the public. The Administration has taken some steps to meeting to help coordinate supporters, which according to the Post include the Service Employees International Union (one of Obama’s big supporters), physicians groups, and other groups, and it has recently posted aYouTube video in support of the legislation. However, the Administration has not taken advantage of the president’s bully pulpit to really lead opinion on this question – it has even been joked that the strongest defense of the individual mandate was actually raised by Mitt Romney. The evidence from my research suggests that a lively, engaged public debate about the individual mandate and efforts by opponents and supporters alike to build support for their visions may be able to reach the Court. It would be naïve to assume that the Court is just taking the public’s temperature in the issue. However, it surely is paying attention. Seen this way, the Administration may have missed an important opportunity to influence the fate of its hallmark legislative achievement. [emphasis added]
Of course, one may recoil at this opinion, in the view that I am suggesting politicians manipulate public discourse to unduly influence the Court. To the contrary, I think the claim I am making is based on the idea that judicial attention to public discourse suggests a healthy, lively democracy. No institution should be impenetrably insulated from the will of the people. The Court does not, as the ficticious Mr. Dooley once suggested, follow “the illiction returns.” However, the Court does pay attention to the will of the people. In this way, the public can have a say in an important part of American policy-making, though it remains the public’s responsibility to make the effort. And, the Administration would best be served by helping the public along, leading opinion and shaping the public discourse.
I have not looked at Clark’s book myself, but this looks like the right way to study the situation: a combination of data analysis and theoretical modeling that can give us a sense of what is happening now, given patterns in previous high-profile court cases.