Public Opinion, the Individual Mandate, and the Supreme Court

A recent Washington Post/ABC poll shows that 68% of the public want the Supreme Court to strike down the individual health insurance mandate. That includes 42% who want the Court to invalidate the entire Affordable Care Act and 26% who want it to strike down the mandate alone. If forced to choose, 52% of those who want the Court to strike down only the mandate would prefer for the Court to get rid of the entire law, if that is the only way to rule the mandate unconstitutional. That means that some 55% would rather have the Court invalidate the entire law than leave the mandate in place. By a 52-41 margin, respondents in the WP/ABC poll also say that they disapprove of the health care law overall.

Support for invalidating the mandate cuts across ideological lines, with even a slight 48-44 plurality of Democrats saying they want the court to strike it down. These results are similar to those reached in other recent polls on the constitutionality of the mandate.

These poll results do not prove either that the law is unconstitutional or that the justices are necessarily going to rule the way the public wants. The public’s knowledge of constitutional law is weak, and the justices don’t always rule in accordance with public opinion.

However, the overwhelming public support for striking down the mandate does suggest that if a majority of the Court wants to invalidate this law, they probably won’t be prevented from doing so by fear of a political backlash. Usually, the Court hesitates to strike down major legislation strongly supported by the president and his party because doing so could result in a political confrontation that the Court is likey to lose, as happened during the New Deal period. In this case, however, strong public opposition to the mandate – along with extensive opposition in Congress – insulate the Court from any such backlash. The situation is in sharp contrast to what happened in the 1930s, when many of the laws struck down by the Court had broad bipartisan support.

The situation is also different from what happened after the Citizens United decision in 2010, the most recent Supreme Court ruling that generated extensive public opposition. In that case, The Court endorsed a result contrary to majority opinion, though I believe it was a correct one.

In fact, the Court could well generate greater public anger if it upholds the mandate than if it strikes it down. Many more people want the law struck down than want the Court to uphold it. As the case of Kelo v. New London dramatically demonstrates, public outrage can be stimulated by a decision upholding an unpopular law just as readily as by striking down a popular one.