New Poll Showing that 68 Percent of the Public Want the Court to Strike Down the Individual Mandate

As co-blogger Jonathan Adler points out, a new New York Times-CBS poll shows that 68% of the public want the Supreme Court to rule that the individual health insurance mandate is unconstitutional, while 41% want it to invalidate the entire Obama health care reform law. Only 24% want the mandate upheld. Even a slight 48-42 plurality of Democrats say they want the Court to strike down the mandate.

Both the overall result and the surprising position of so many Democrats are consistent with previous polls. They severely undercut claims that a decision striking down the mandate would damage the Court’s “legitimacy.” To the contrary, it is possible that the Court would suffer a political backlash if it upheld the mandate. The very negative public reaction to Kelo v. City of New London demonstrates that the public may become just as angry when the Court upholds a law large majorities believe to be unconstitutional, as when it invalidates popular legislation.

To avoid misunderstanding, I emphasize that the justices should not strike down the law merely because a large majority of the public wants them to. Most voters have only a very limited understanding of constitutional law, and many unpopular laws are still constitutional. Sometimes it is the Court’s duty to strike down a law even if a large majority of the public wants the law to be upheld, as happened when the Supreme Court invalidated laws banning flag burning. The real relevance of the polling data on the mandate is merely that if a majority of the Court believe that the law is unconstitutional, they are probably not going to be deterred from striking it down by fear of a political backlash or damage to their legitimacy.