The Impact of the Individual Mandate Decision on the Supreme Court’s Legitimacy

Various leaks suggest that Chief Justice John Roberts switched his vote in the individual mandate case in order to protect his own and the Supreme Court’s reputation and enhance their legitimacy. Whether or not that was his objective, it is interesting to ask whether the goal was achieved. Did the decision enhance the Court’s legitimacy more than it detracted from it?

So far, the answer seems to be “no.” Post-decision polls show that the majority of the public disagrees with the mandate decision, and overall public approval of the Court has fallen substantially. These results were entirely predictable based on pre-decision polls, which consistently showed that an overwhelming majority wanted the Court to strike down the mandate, including even a slight plurality of Democrats.

Roberts probably did succeed in enhancing the Court’s reputation among law professors and left-wing legal elites, many of whom would have been very angry if the Court had invalidated the mandate. But even among this group, the results are somewhat equivocal. Many of them probably believe or at least suspect that Roberts switched his vote out of fear for his reputation rather than because he genuinely believed in the federal government’s dubious tax argument (which had been rejected by every lower court to have considered it, including several liberal judges). Those who do believe this may be happy about the result; but it is unlikely to enhance their opinion of Roberts himself, who on this account comes off as a man who cares more about his and the Court’s reputation among legal elites than about enforcing the Constitution. And obviously, the reputational boost among liberal elites comes at the cost of reputational harm at the hands of their conservative and libertarian counterparts. Many will not soon forgive Roberts, especially if additional evidence comes out that reinforces the perception that he switched for reputational rather than legal reasons.

It is still possible that the mandate decision will improve the Court’s reputation in the long run. If future generations endorse the liberal view that judicial enforcement of constitutional limits on federal power is always or almost always inappropriate, then Roberts will come out looking prescient. But it’s at least equally likely that future opinion will move in the opposite direction, in which case Roberts’ ruling will be even more unpopular than it is today. Over the last thirty years, the idea of judicial enforcement of federalism has gained an enormous amount of ground. It’s possible that that trend will continue rather than be reversed.

As I have previously emphasized, enhancing his own and the Court’s reputation is not the real job of a Supreme Court justice. If Roberts believed that the mandate was constitutional, he had a duty to vote to uphold it even if the Court’s reputation might be harmed as a result. We still don’t know enough to be able to tell what his true motive was, and cannot rule out the possibility that it was purely legal. But if reputational concerns really were central to his decision, it is ironic that, so far, it hasn’t worked out very well.

Justices interested in enhancing their reputations could potentially learn at least two valuable lessons from this experience. First, traditional liberal legal elites are not the only important arbiters of judicial reputation. Both nonliberal elites and the general public have considerable clout of their own, at least on cases big enough to attract significant public attention. A decision popular with the former group can still diminish the Court’s legitimacy if it angers the latter two. Kelo v. City of New London and the individual mandate case are good examples of this phenomenon. Second, in this age of leaks, a justice who casts his vote for reputational reasons may not be able to keep that fact secret for long. And when the public learns what he did, the result could well harm his reputation more than it enhances it.