Health Care

Some Predictions on the Supreme Court’s Decision

Jun 28 '12

Before the Court issues its ruling, I’ll put these down:

* How will the Court rule?  Back in November, Michael Bailey did some modeling based on the justices’ ideologies and deference precedent and predicted a 6-3 or even 7-2 decision in favor of the ACA.  Scott Lemieux was dubious about this modeling.  Based on the oral arguments, Michael Evans thought that the individual mandate was in trouble.  Joe Ura thinks the Court will strike down the law, 5-4.  Sean Trende feels similarly.  Ezra Klein lists some other predictions, and ways the Court could split the difference.  Nate Silver has a judicious take.  I have nothing to add here.

* How will the public react?  I have written on this previously here and here.  Do not expect public opinion about the ACA to change very much in reaction to the decision.  Public opinion about the ACA has been quite stable and polarized along party lines since forever.  See Dan Hopkins’s graphs, Scott Clement’s graphs, and this paper by Douglas Kriner and Andrew Reeves.  Supreme Court decisions, rather than providing an authoritative and persuasive statement on the issue, often simply polarize people further.  In this case, I expect the Court’s decision to be the subject of continued partisan debate, making continued polarization in public opinion likely.

* Is the spending to blame?  If the Court strikes down the ACA, should we blame the fact that opponents have outspent supporters by 3.5-1 since the ACA passed?  I don’t think so.  Despite this spending advantage, note that public opinion on the ACA essentially has not moved.  And, as Dan has noted here and here, the ideas that the public has about the ACA — which might reflect the framing of the issue in the ads and broader debate — haven’t changed much either.  It is true that people’s knowledge of the ACA’s provisions is sketchy, but I doubt that a broad-based campaign of public education by its supporters would have been sufficient to change many minds.  I think the partisan polarization is too entrenched here.  More important than the spending, or even public opinion itself, might be the broader campaign by opponents within the legal community.

* What happens next?  Although there is a tendency for media coverage of public policy debates to treat them like games — with winners and losers — that won’t be true here.  To be sure, whatever the Court rules, it will constitute a victory or defeat for some people.  But it won’t be “game over.”  It’s not clear that health care reform is dead if the individual mandate is struck down; see Lawrence Jacobs and Theda Skocpol, or the head of Aetna for that matter.  Watch the states, where you are likely to see continued innovation and experimentation.   If the ACA is upheld, it’s not game over either, as Jeff Jenkins and Eric Patashnik wrote on this blog.  The ACA is quite vulnerable to future changes.

My broader point is: the governments at all levels are going to do more regarding health care reform — under Democrats, under Republicans, perhaps under both.  The Court’s decision today is important, but it is only one event in this ongoing process.