The Volokh Conspiracy

Ever since the Arab Spring began, I have been concerned that it could ultimately result in the establishment of Islamist regimes as bad or worse than the more secular dictatorships they replaced. One of the reasons for that fear is that public opinion in many Arab nations is highly illiberal and intolerant. As a result, free elections could result in victories for authoritarian and repressive radical Islamists, as has indeed happened in Egypt. The new Islamist Egyptian President has already imposed media censorship and harrassment that activists consider to be worse than Mubarak’s was.

Unfortunately, the recent outbreak of violent riots in many Middle Eastern nations in response to an insignificant anti-Muslim Youtube video is a further indication of the problem. With the important exception of Libya, most Arab and Muslim governments have issued vitriolic condemnations of the video while either ignoring or only mildly criticizing the violent response to it.

In the absence of systematic polling data, it is too early to say what percentage of the population in these countries agrees that violent rioting is a justified response to “blasphemous” speech. But the tepid reaction of Arab governments to the violence suggests that such support is at least relatively common, even if not the view of a majority. And in Egypt, site of some of the worst violence, previous survey data shows that violent religious intolerance does enjoy majority support. For example, a 2010 Pew survey found that 84% of Egyptians believe that Muslims who convert to another religion should be executed.

It would be a mistake to say that such intolerance and illiberalism are an inevitable attribute of Islam. Like Christianity and Judaism, Islam is a centuries-old religion with many different variants, some of them more liberal and tolerant than others. I don’t believe that the radical Islamism is the “true” version of Islam, while liberal variants are somehow “fake.” There is no single true Islam, any more than there is one true version of Christianity. But it is clear that the versions of Islam that enjoy widespread support in much of the Muslim world are authoritarian and oppressive. And, in many countries, the purveyors of such intolerance have been empowered by the Arab Spring to a much greater extent than liberals.

None of this bodes well for the future of the Arab Spring nations. Obviously, public opinion is not the only factor that will determine the outcome. Political elites matter too, as do a variety of other factors. Unfortunately, however, in much of the Arab world, radical Islamists are far better organized than their more liberal opponents, which might enable them to seize and hold power even when majority opinion is not on their side.

The Citizens United case spurred much outrage on the political left, including claims that the Roberts Court was sacrificing its legitimacy to aid Republicans by allowing corporate money to flow freely into political campaigns. Recently, many commentators have defended Chief Justice Roberts from speculation that he capitulated to political pressure in NFIB v. Sebelius by noting that he has been immune to political pressure attending Citizens United. Indeed, the Court had the opportunity to but refused to reconsider Citizens United this past term.

I’m not going to make any normative judgment about the political effects of Citizens United, nor am I going to speculate about Roberts’s motives (at least not in this post). But I did want to mention that I think that liberal political activist types tend to grossly overestimate how much non-political types care about Citizens United.

Here is (my admittedly purely anecdotal) evidence. Friends and family of mine know I’m a law professor, and know that I teach evidence and constitutional law. Naturally, when they are curious about a case they will often ask me what I think of it. Over the years, I’ve gotten a lot of questions about the OJ Simpson trial, Jones v. Clinton, Bush v. Gore, Grutter and Gratz, most recently, an especially large number of questions about the constitutionality of Obamacare (before, during, and after the litigation). No one has ever asked me about Citizens United or the constitutionality campaign finance reform–not my liberal friends and family, not my conservative friends and family, not my libertarian friends and family. Indeed, I have a few second cousins who I see a few times a year who work in various political jobs in DC, and none of them have expressed interest in the issue, though we’ve discussed a bunch of other controversies that raise constitutional issues.

So maybe my own experience is just a fluke, but I just don’t get the sense that Citizens United has resonated much in the general public. If I’m right, that doesn’t necessarily mean that people don’t care about “money in politics,” they just don’t seem to care about (and in many cases likely aren’t aware of) the Citizens United decision, as such.

UPDATE: Yes, I know that pollsters get strong negative response to CU when they ask questions like this (taken from a real poll):

Now let me read you some information. In 2010, the Supreme Court decided in a case commonly referred to as Citizens United that corporations and unions can spend unlimited amounts of money to directly support or oppose political candidates. Before the ruling,corporations and unions could not. From what you know, do you favor or oppose this Supreme Court ruling?

This really doesn’t tell us whether the respondents care about, or were even aware of before prompted by pollsters, the CU decision.

Also, I suppose I should clarify that I’m not arguing that no one, or only a very insubstantial percentage of people, care about Citizens United. Rather, I suspect that the level of interest in the case in the general public, that is among people who aren’t political junkies or activists, is much lower than their interest in the cases I mention above.

FURTHER UPDATE: Here is some relevant data. According to Gallup, in June 2009, before CU, 44% of Democrats (the group in which outrage re CU is clearly greatest) expressed a great deal of confidence in the Supreme Court. In July 2010, after CU, this went up to 48%. In June 2012, after two years of supposed outrage over CU, the number went all the way down to.... 44%. (For independents, the numbers were 36-35-32, for Republicans 35-2638.) These numbers do not depict a public, even a Democratic public, seething with outrage over Citizens United. [By contrast, Democrats' approval of the Court plunged by 28 percent points just after Bush v. Gore, and didn't fully recover until Obama became president].]

In response to my post arguing that Chief Justice Roberts’ vote in the individual mandate decision failed to enhance the Supreme Court’s legitimacy, co-blogger Orin Kerr argues that Roberts may have been motivated by a different definition of legitimacy, one seemingly unrelated to popularity:

If Roberts is thought to have been influenced by public pressure, though, wouldn’t that pressure push him to strike down the mandate, not uphold it? Ilya speculates that Roberts was trying to gain the acceptance of “traditional liberal legal elites” like liberal law professors. They held the opposite view from the public, so perhaps Roberts was caving into their pressure despite public opinion as a whole....

But Ilya’s speculation that Roberts was trying to please “liberal legal elites” strikes me as far-fetched. Until the mandate case, Roberts has been a reliable conservative vote. He has written and joined decisions that greatly enraged the “traditional liberal legal elites,” such as Citizens United and and Parents Involved v. Seattle School District....

The way out of the puzzle is to recognize the difference between legitimacy and popularity. Chief Justice Roberts cares about the legitimacy of the Supreme Court. He has a conception of the judicial role in which judges generally don’t jump into the political thicket and make themselves major players on the political scene. This was the often-ignored point of his umpire analogy during his confirmation hearings: “Nobody ever went to a ball game to see the umpire.” The umpire is legitimate when he is unobtrusively calling pitches, but if he makes himself the story of the game, something has gone wrong. We can agree or disagree with this conception of the judicial role. But this is a very different concept than popularity.

Orin seems to be using the term “legitimacy” in a way different than most other commentators on the Supreme Court do. Usually, it is used to denote the Supreme Court’s reputation with the general public or with some subset of legal or political elites. I would also note that the “speculation” that Roberts sought to enhance the Court’s reputation in the eyes of legal elites is not my personal invention, but rather the claim made by various Supreme Court leakers. As I have written several times, we don’t have enough evidence to prove or disprove the claim, though it strikes me as plausible.

Whatever the true explanation for Roberts’ decision, Orin’s theory is unlikely to be it. If Roberts has an aversion to entering the “political thicket” – in the sense of making decisions striking down politically important and controversial laws – he would not have voted as he did in Citizens United, Parents Involved and other similar cases. Each of those decisions was highly controversial and was denounced by critics as “political.” In Orin’s terms, Roberts was certainly a big part of “the story of the game” in those cases; he quite obviously was not “unobtrusive.”

Moreover, if this was the motivation for his vote in the individual mandate case, it is difficult to see why he originally wanted to strike it down. After all, he surely knew for many months that the individual mandate was a centerpiece of the president’s most important legislative accomplishment and that any decision striking it down would be politically controversial.

The sequence of events therefore renders Orin’s theory unlikely. That, of course, does not prove that Roberts switched in order to enhance the Court’s reputation with legal elites. But the latter theory does at least fit the timeline, since he seems to have switched right around the time that many such elites started aggressively claiming that a decision striking down the mandate would not only be wrong, but a catastrophe for the Court’s legitimacy. It is true, of course, that he bucked those same elites in earlier cases. But none of them involved as extensive an elite campaign to challenge the Court’s legitimacy, certainly not before the decision was even reached.

It’s also worth noting that a judge’s refusal to strike down what he believes to be an unconstitutional law because of its high visibility and great political significance is itself a political decision. To borrow from Roberts’ famous analogy between umpires and judges, it is similar to an umpire refusing to call a strike on a star hitter batting in a key situation in the World Series, even though he would have called the same pitch a strike on a less important occasion with a less famous hitter at the plate. As Roberts himself put it, “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules.” [emphasis added]. A judge who applies the rules differently depending on the importance of the law at stake is making the rules rather than merely applying them.

I still think it’s possible that Roberts switched for some other reason, including that he simply just came to like the federal government’s tax argument on legal grounds. It’s also possible that he had more than one motive. The purpose of my posts on Roberts’ switch was not to definitively settle the question of why he did it, but rather to explore the legal and political implications of his decision. Obviously, I recognize that the latter depends in part on the former. So I have always been careful to note that we do not have anything approaching definitive evidence of Roberts’ motives.

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.

A new Newsweek/Daily Beast poll of likely voters shows that 50% disapprove of the Supreme Court’s ruling upholding the Affordable Care Act as a whole, compared to 45% who support it. Survey respondents disapprove of the decision to uphold the individual health insurance mandate specifically by a larger 49-38 margin.

This is a significantly smaller anti-mandate majority than the 65-70% who said they wanted the Court to strike down the mandate in polls conducted before the decision was handed down. The difference may well be the result of the fact that a substantial minority of the public will tend to assume that any decision the Court makes is likely to be right unless they have very strong personal feelings on the subject.

Nonetheless, this result undermines the notion that the ruling will be a boost to the Court’s legitimacy or that its public image would have suffered had it ruled the other way. It’s unlikely that the Court’s legitimacy improved much in the eyes of anyone but committed liberals and legal academics.

To avoid misunderstanding, I will repeat what I have said many times before: public opinion about a court decision says very little about whether the ruling is right or wrong. Popular rulings are sometimes badly misguided (consider Korematsu v. United States, which was extremely popular at the time), and unpopular ones can be correct (the flag burning cases are a good example).

I do not believe that the Court should decide cases based on the perceived effects on its “legitimacy.” But for those who disagree, the individual mandate decision was not the great triumph that some imagine it to be.

In a recent op ed, former Obama adviser and Office of Management and Budget director Peter Orszag argues that the the United States should make voting compulsory:

The U.S. prides itself as the beacon of democracy, but it’s very likely no U.S. president has ever been elected by a majority of American adults.

It’s our own fault — because voter participation rates are running below 60 percent, a candidate would have to win 85 percent or more of the vote to be elected by a majority.

Compulsory voting, as exists in Australia and more than two dozen other countries, would fix that problem. As William Galston of the Brookings Institution argues, “Jury duty is mandatory; why not voting?”

Mandating voting has a clear effect: It raises participation rates. Before Australia adopted compulsory voting in 1924, for example, it had turnout rates similar to those of the U.S. After voting became mandatory, participation immediately jumped from 59 percent in the election of 1922 to 91 percent in the election of 1925.

Orszag’s proposal and others like it are potentially harmful solutions to a non-problem. There is no evidence that nations with compulsory voting are, as a result, better governed than those where voting is voluntary. As Tim Cavanaugh points out, the former category includes many states such as Argentina, Lebanon, Egypt, Congo, and others that are hardly paragons of civic virtue. By contrast, one of the few democracies that has even lower turnout rates than the United States is Switzerland, which is widely considered one of the best-governed nations in the world. I am not suggesting that low turnout is the cause of Switzerland’s success; but it certainly hasn’t inhibited it. Orszag himself admits that most political scientists believe that the outcomes of US elections over the last several decades would not have been significantly different if all eligible non-voters had turned out. There is also no reason to believe that a president or Congress elected by a majority of all Americans would be somehow more legitimate or otherwise morally preferable to one elected by a majority of those who voluntarily choose to vote. One cam imagine that an electorate where, say, only 1 percent turn out would be highly unrepresentative and might be perceived as illegitimate by the rest of society. But the same is not true of one where 40 to 60% of eligible voters turn out, as is true in modern US elections.

Orszag worries that without compulsory voting, people will not turn out because doing so isn’t rational:

For economists, the puzzle is not why voting participation rates are so low in voluntary systems, but why they’re so high. The so-called paradox of voting, highlighted in a 1957 book by the political scientist Anthony Downs, occurs because the probability that any individual voter can alter the outcome of an election is effectively zero. So if voting imposes any cost, in terms of time or hassle, a perfectly rational person would conclude it’s not worth doing. The problem is that if each person were to reach such a rational conclusion no one would vote, and the system would collapse.

Mandatory voting solves that collective action problem by requiring people to vote and punishing nonvoters with a fine.

However, the paradox of voting is not a serious enough problem to prevent tens of millions from turning out voluntarily every two years. Moreover, for reasons I explain in this article, it is actually rational to vote despite the low odds of decisiveness so long as the voter believes that there is a substantial difference between the opposing candidates, and cares at least somewhat about the rest of society as well as his own self-interest. To oversimplify the analysis, the low odds of decisiveness are outweighed by the potentially enormous payoff if your vote does turn out to matter. It is also relevant that voting is a low-cost activity that requires little time and effort.

While creating few if any benefits, compulsory voting laws are likely to cause harm. Most obviously, they are an infringement on the liberty of those who choose not to vote, including those who do so because they lack the knowledge needed to make a good decision. If rigorously policed, compulsory voting would also require significant expenditures on enforcement.

Finally, it is likely that those who currently choose not to vote probably have, on average, lower levels of political knowledge than those who do. If so, forcing them to the polls will exacerbate the already serious problem of political ignorance. Unlike voting, acquiring and understanding more than a minimal level of political knowledge is a costly activity, which makes it rational for most voters to stay ignorant, given the low chance that their knowledge will make a difference. This is especially true for those who are not interested in public policy for reasons other than voting. It is possible that many nonvoters are people with little or no interest in politics, and therefore little or no political knowledge.

I do not want to overstate this point, since it’s not clear how great the gap in knowledge between voters and nonvoters actually is. High-knowledge citizens who choose not to vote are more likely to falsely report having voted when asked in surveys, which makes comparisons difficult. Nonetheless, it is at least plausible that compulsory voting will make political ignorance an even more serious problem than it already is. More generally, we should spend less time worrying about turnout and more about whether those who do turn out actually understand what they are voting on.

UPDATE: I have made a few stylistic changes to this post.

UPDATE #2: It might be argued that, if nonvoters do not have electoral preferences significantly different from those who do vote, the potential decline in the average political knowledge of the electorate caused by mandatory voting will not matter. That may be. But knowledge affects more than just preferences between candidates. It also affects preferences on policy issues. A more ignorant electorate could well lead candidates and parties to change their platforms and policies when in office for the worse. That would be significant even if electoral results do not change.

UPDATE #3: In response to some who point to Australia as an example of compulsory voting, I would reiterate that there is little if any evidence that Australia has a better or more legitimate government as a result. Indeed, neighboring New Zealand, which does not have compulsory voting, has a political system that functions just as well or better. More generally, as noted above, nations with compulsory voting don’t seem to have consistently superior government relative to those that don’t.

Like many of the other bloggers and readers here at the VC, I hold many extreme political views – “extreme” in the sense that they are distant from those of most of the general public. I’m probably among the most libertarian 1-2 percent of the American population. On the other hand, there are clearly libertarians out there who are more extreme than I am. They favor an even smaller role for government or would abolish the state entirely. Some also diverge from majority opinion more than I do in other ways. Why do I disagree with “extremists” who are even more extreme than I am?

Economist Bryan Caplan has an interesting post devoted to that kind of question:

I’m an extremist. I freely admit it....

Still, no matter how extreme you are, there are almost always people on “your side” who are even more extreme than you are.... [Y]ou probably spend a lot more time attacking those who don’t take your views far enough rather those who take them too far. But the fact that there are people more extreme than you is revealing. You must think there’s some reason why it’s wrong to be any more extreme than you are.

My question: What precisely are those reasons?

The most obvious umbrella responses:

1. Public relations. Views more extreme than your own are counter-productive because they alienate the moderates you need to convince to get better results.

2. Transition costs. While you agree with the extremer extremists about the ultimate goal, they underrate the transition costs of getting from here to there....

3. Latent pluralism. Despite your often one-sided rhetoric and disdain for the “other side(s),” they actually make some valid points; they just overstate them. Thus, even if you habitually dismiss the view that statist policies give bad incentives, you might ultimately agree that your policies would provide disturbingly bad incentives if they were pushed further than you advocate. Picture a socialist who opposes a 100% marginal tax rate....

4. Papered-over fundamental differences. Even if you psychologically and sociologically identify with your extremer extremists, you don’t philosophically identify with them. They’re just fellow travelers who fail to grasp the principles that really count....

Bryan’s point 1 isn’t really a reason to reject the more extreme view. At most, it’s a justification for not revealing that you hold that position, in order to avoid alienating moderates. A genuine “extremer extremist” can still choose to seem more moderate than he really is for public relations reasons. In any event, I don’t soft-pedal the substance of my views on issues I regularly write about for the sake of attracting moderates, though I am very conscious of this issue when it comes to questions of style. I might act differently if I were running for public office or gunning for a judgeship. But fortunately I’m not.

Point 2 is potentially significant. There are various government programs whose creation I consider to be unjustified that I would not abolish immediately, because of reliance interests. In most such cases, however, I would still want to abolish them gradually rather than leave them in place permanently. So this is not really a big area of disagreement between me and more extreme libertarians.

The fourth point is a bigger issue for me. Many of the libertarians who are more extreme than I am believe in absolute property rights, whereas I do not. I think utilitarian considerations matter also, and individual rights (including property rights) can sometimes legitimately be sacrificed if there is a large enough utilitarian benefit. However, some libertarians who are more extreme than I am actually hold very similar fundamental values. Economist David Friedman and Bryan Caplan himself are good examples. Both of them also reject absolute rights and are partial utilitarians.

The really big factor for me is ultimately point 3, “latent pluralism.” There are a few market failures (mostly certain public goods problems) that I think private sector institutions can’t handle, while government has at least a reasonable chance of doing better. I think liberals and conservatives (to say nothing of socialists) greatly overstate the frequency of such examples. But I believe they are correct about a small but important set of cases. I’m familiar with the more extreme libertarian and anarchist literature arguing otherwise, some of which makes excellent points. But I don’t find it fully convincing.

I plead guilty to spending much more time criticizing views that are less libertarian than mine than those which are even more so. Bryan suggests this is a result of “my-side” bias. Perhaps so. But it’s also because libertarians more extreme than me are fairly rare and have very little influence. If I lived in a much more libertarian society where my views were closer to the middle of the political spectrum, I would certainly devote more time to writing about libertarians who are more extreme than I am.

That said, I have in fact devoted a few posts to airing my differences with more extreme libertarians, such as here, here, and here. And here’s an audio of a debate on libertarianism and foreign policy between Bryan and myself, which addresses one major example.

UPDATE: In the initial version of this post, I accidentally forgot to include a link to Bryan’s post. I have now fixed that error.

In a previous post, I argued that Supreme Court justices should not decide the individual mandate case based on the decision’s effect on their perceived “legitimacy.” Mark Tushnet asks, why not?

[W]hy exactly shouldn’t [Chief Justice John Roberts] worry if he believes that a Court decision — any one, really — will impair the Court’s legitimacy, in the sense that it would make it more difficult for the Court to hold public support for its (other) decisions? Or, believes that a decision will not be seen in retrospect as a wise one (the “verdict of history” point)? I’m not here endorsing the view that a decision striking down the Affordable Care Act would impair the Court’s legitimacy or be seen in retrospect as unwise, just wondering what’s wrong with taking those things into account when a justice is thinking about how best to interpret the Constitution. (Would Justice Henry Billings Brown have been wrong to think about them when trying to decide whether to pull his draft opinion in Plessy v. Ferguson in favor of Justice Harlan’s dissent?...)

This is a good question. The answer, in my view, is that the job of Supreme Court justices is to enforce the Constitution, not to make decisions that will have broad public support or be perceived as legitimate. Indeed, judicial enforcement of constitutional restrictions on government power is particularly crucial precisely in those cases where violations of those restrictions enjoy strong political support. To turn Mark’s question about Plessy around: Was Justice Brown’s decision justified by the fact that a contrary result might have been considered “illegitimate” by majority public opinion in the 1890s, and deeply resented by millions of white southerners? Was Korematsu justified because the internment of Japanese-Americans enjoyed overwhelming public support at the time, and a decision striking it down would have been widely denounced as an illegitimate intrusion on the wartime powers of the political branches?

This point applies to legitimacy in the eyes of future public opinion, as well as contemporary opinion. Future public opinion can easily be wrong, and can often support violations of the Constitution. For example, public opinion in 1900 was far less favorable to judicial enforcement of African-American rights than public opinion in the 1870s. If 1870s Supreme Court justices could accurately predict that trend, would they have been justified in cutting back on enforcement of the Fourteenth Amendment? It’s possible that future terrorist attacks will turn majority public opinion strongly against the Supreme Court’s Guantanamo decisions. If the justices believed that to be likely, should they have endorsed the Bush administration’s position in those cases in order to get on the “right side” of history?

Nonetheless, I think there are narrow circumstances where courts can legitimately take account of legitimacy. One such situation is when a correct constitutional decision would attract such wide opposition that it cannot be effectively enforced. If that is the case, courts are simply incapable of doing their normal duty, and perhaps they would be justified in not even trying. The case for making discretion the better part of valor in such situations might be especially strong if a the correct-but-unenforceable decision undermines the Court’s ability to enforce other parts of the Constitution in future cases. Perhaps a decision like Korematsu can be defended on that basis. A contrary ruling would almost certainly have been successfully disobeyed by the president and Congress. On the other hand, it’s possible that correct decisions in such cases would at least increase the chance that public opinion would change in the future, making it possible to eventually enforce the Constitution at a later date.

It’s also possible that a decision perceived as illegitimate is itself enforceable, but might still undermine enforcement of future decisions by compromising the Court’s reputation. If this is the case, the justices will have to consider whether the future damage to the Constitution outweighs the constitutional principles that would be sacrificed by reaching the wrong result in the present case. I think this kind of scenario is unlikely. If people are willing to obey the initial “illegitimate” decision, it seems like they would also obey future decisions that are less controversial. But it’s not impossible.

In both of these scenarios, the reason why it is legitimate for the justices to consider legitimacy is because of its potential effect on their ability to do their proper job of enforcing the Constitution – not because legitimacy is valuable in itself.

I think it’s fairly clear that a decision striking down the mandate doesn’t even come close to falling into one of these two categories. As I discussed in my previous post, the vast majority of the public – including many Democrats – would actually support such a ruling.

One can reasonably argue that legitimacy should play a much larger role in judicial decision-making than I would support. Perhaps the justices should value legitimacy for its own sake. Alternatively, perhaps widespread and deeply felt public opposition to a given ruling should lead the justices to doubt the validity of its reasoning. However, anyone who believes that the Court should uphold the mandate because of the perceived illegitimacy of a contrary ruling must also oppose other decisions that are viewed as illegitimate by a larger proportion of the population. These include cases such as Roe v. Wade, Kelo v. City of New London, the school prayer and religious display decisions, the Guantanamo cases, several of the Warren Court’s defendants’ rights rulings, the flag burning cases, and other decisions supported by liberal constitutional theorists. At the time they were decided – and in some cases even today – each of these rulings were perceived as illegitimate by a larger proportion of the public than is likely to oppose a decision striking down the mandate. Some of them also attracted vociferous criticism by parts of the legal elite.

In my view, many of the above decisions were actually correct. That’s because I do not think that perceived legitimacy should be an important factor in Supreme Court decision-making, except in very rare instances. But if you believe that legitimacy should be a major factor when it comes to the mandate, that principle cannot be limited to the present case. You have to apply it consistently across the board. Doing so would call into question a wide range of Supreme Court decisions.

UPDATE: I have slightly edited this post to fix one or two typos.

Both sides in the individual mandate litigation have developed a wide range of legal arguments to support their position. Some defenders of the mandate have also emphasized several nonlegal reasons why they believe the Court should uphold the law. These arguments have gotten more emphasis since the Supreme Court oral argument seemed to go badly for the pro-mandate side. The most common are claims that a decision striking down the mandate would damage the Court’s “legitimacy,” that a 5-4 decision striking down the mandate would be impermissibly “partisan,” and that it would be inconsistent with judicial “conservatism.”

Even if correct, none of these arguments actually prove that the Court should uphold the mandate as a legal matter. A decision that is perceived as “illegitimate,” partisan, and unconservative can still be legally correct. Conversely, one that is widely accepted, enjoys bipartisan support, and is consistent with conservatism can still be wrong. Plessy v. Ferguson and Korematsu are well-known examples of terrible rulings that fit all three criteria at the time they were decided.

In addition, all three arguments are flawed even on their own terms.

I. A Decision Striking Down the Mandate is Likely to Enhance the Court’s Legitimacy More than it Undermines it.

Claims that a decision striking down the mandate will undermine the Court’s “legitimacy” founder on the simple reality that an overwhelmingly majority of the public wants the law to be invalidated. Even a slight 48-44 plurality of Democrats agree, according to a Washington Post/ABC poll. Decisions that damage the Court’s legitimacy tend to be ones that run contrary to majority opinion, such as some of the cases striking down New Deal laws in the 1930s. By contrast, a decision failing to strike down a law that large majorities believe to be unconstitutional can actually damage the Court’s reputation and create a political backlash, as the case of Kelo v. City of New London dramatically demonstrated.

Striking down the mandate will damage the Court’s reputation in the eyes of many liberals and some legal elites. But a decision upholding it will equally anger many conservatives and libertarians, including plenty of constitutional law experts. There is not and never has been an expert consensus on the constitutionality of the mandate. Any decision the Court reaches is likely to anger some people, both experts and members of the general public. But more are likely to be disappointed by a decision upholding the law.

Ultimately, the Court should not base its decision in this case on “legitimacy” considerations. If the justices believe that the mandate is constitutional, they should vote to uphold it despite the possible damage to their reputations. But it would be a terrible signal if key swing justices refused to strike down a law merely because their reputations would be damaged in the eyes of a small minority of the public and a vocal faction of the legal elite. It would certainly call into question their willingness to make unpopular decisions that are compelled by their duty to uphold the Constitution, including in cases where they must strike down unconstitutional laws that really do enjoy broad public support.

II. An Impermissibly “Partisan” Decision?

Any decision striking down the mandate is likely to pit the five conservative Republican justices against the four liberal Democrats. Some commentators, such as Larry Lessig and Jonathan Cohn, claim that such a result would be impermissibly “partisan,” creating a perception that the Court is only willing to strike down “liberal” laws.

This sort of argument urges judges to engage in genuinely political decision-making in order to avoid the mere appearance of it. If a Republican-appointed justice votes to uphold a law he believes to be unconstitutional in order to avoid the appearance of “partisanship,” he would be allowing political considerations to trump his oath to uphold the Constitution.

Even if there is a judicial duty to avoid the appearance of a partisan split, why doesn’t it fall on the liberal justices just as much as the conservatives? If one or more of the liberal justices were to join the five conservatives in striking down the mandate, that would diminish the appearance of partisanship just as much as a conservative “defection” to the liberal side would.

Finally, this line of criticism overlooks an important reason why decisions enforcing limits on congressional power often have an ideological division: the Court’s liberals have consistently voted against nearly all structural limits on congressional power under the Commerce Clause, the Necessary and Proper Clause, and the Tenth Amendment. Thus, the Court enforces such limits only in those cases where the five conservative justices can agree among themselves. The only way for the conservatives to avoid the appearance of partisanship in this area would be complete abdication of judicial enforcement of structural limits on congressional power.

III. Consistency with Judicial “Conservatism.”

Jeffrey Rosen and others have argued that a decision against the mandate would be inconsistent with “conservative” attacks on “judicial activism” and deference to legislative judgment. Judicial conservatism is not a single, unitary entity. All sorts of decisions can potentially be justified on “conservative” grounds.

However, one major strand of conservative legal thought over the last thirty years has been the need to enforce constitutional limits on federal government power. This idea would be completely undercut by a decision upholding the mandate, since all of the government’s arguments in favor of the mandate amount to a blank check for unconstrained congressional power. As I explain in detail in this amicus brief for the Washington Legal Foundation and a group of constitutional law scholars, the government’s various “health care is special” arguments collapse under close inspection.

Conservative support for judicially enforced limits on federal power is in some tension with loose conservative rhetoric about “judicial activism,” which is one reason why I have long been critical of such rhetoric. However, for most on the right, “judicial activism” is not coextensive with any judicial overruling of statutes, but rather with departures from the text and original meaning of the Constitution. And the originalist case against the mandate is very strong.

Conservatives and others can disagree among themselves as to how much deference should be given to Congress in any given case. In considering this issue, they should weigh two points that Rosen advanced in his important 2006 book The Most Democratic Branch: How The Courts Serve America.

Although generally advocating judicial deference to Congress, Rosen notes two important exceptions to this principle. The first is that “When Congress’s own prerogatives are under constitutional assault (in cases involving legislative apportionment or free speech, for example), it may be less appropriate for judges to defer to Congress’s self-interested interpretations of the scope of its own power.” Obviously, there are few more “self-interested” interpretations of “the scope of its own power” than one that would give Congress virtually unlimited power to impose any mandate it wants.

Second, Rosen suggests that “[f]or the Court to defer to the constitutional views of Congress, Congress must debate issues in constitutional (rather than political) terms” (pg. 10). In order to deserve deference, Congress needs to take the relevant constitutional issues seriously. In the individual mandate case, congressional Democrats notoriously demonstrated utter contempt for the constitutional issues, and plenty of ignorance to boot.

In fairness, their performance was no worse than that of the GOP when they controlled Congress during the Bush years. Far from generating serious constitutional deliberation in the legislative branch, the judiciary’s tendency to defer to Congress on federalism issues has had the opposite effect. Both parties give short shrift to constitutional limits on federal power because judicial deference has created a political culture in which almost anything goes. More careful judicial scrutiny of Congress’ handiwork might lead Congress to start taking the Constitution seriously again. That result should be welcomed by conservatives, libertarians, and liberals alike.

A nondeferential posture by the Court wouldn’t necessarily lead to the invalidation of the mandate. It merely means that the justices should give little weight to Congress’ “self-interested” interpretations of its own power and instead come to their own independent judgment on the constitutional issues at stake.

Ultimately, the Court should not decide the individual mandate case based on these sorts of nonlegal considerations. It is more important that its decision be right than that it be perceived as legitimate, nonpartisan, or conservative. But even on its own terms, the nonlegal case for upholding the mandate is not as impressive as its advocates claim.

UPDATE: Ed Whelan makes some relevant points here.

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Because Hamilton was the foremost “big government” advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.

Well before Marbury v. Madison, the Supreme Court recognized that the People had given the Court the inescapable duty of reviewing the constitutionality of statutes which came before the Court. The Court fulfilled this duty in cases such as Hylton v. U.S. (1796) (Is congressional tax on carriages a direct tax, and therefore illegal because it is not apportioned according to state population?); and Calder v. Bull (1798) (Is Connecticut change in inheritance laws an ex post facto law?). The Court found that the particular statutes in question did not violate the Constitution. (The ex post facto clause applies only to criminal laws; the carriage tax was an indirect tax, not a direct tax.) However, the Court’s authority to judge the statutes’ constitutionality was not disputed.

It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees. (For the record, I think that the federal abortion ban should have been declared void as because it was not within Congress’s interstate commerce power, and that Boumediene was probably decided correctly, although I have not studied the issue sufficiently to have a solid opinion.) The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.

As a politician complaining that a Supreme Court which should strike down laws he doesn’t like, while simultaneously asserting that a judicial decision against a law he does like is improperly “activist,” President Obama is no more hypocritical than many other Presidents. But in asserting that the actions of a “strong” majority of Congress are unreviewable, President Obama’s word are truly unprecedented. Certainly no President in the last 150 years has claimed asserted that a “strong” majority of Congress can exempt a statute from judicial review. President Lincoln’s First Inaugural criticized the Dred Scott majority for using a case between two private litigants for its over-reaching into a major national question, but Lincoln affirmed that the Court can, and should, provide a binding resolution to disputes between the parties before the Court. And in 2012, the government of the United States is one of the parties before the Court. (And the government is before the Court in part because the government filed a petition for a writ of certiorari to ask the Court to use its discretion to decide the case.)

Alone among the Presidents, Thomas Jefferson appears as a strong opponent of judicial review per se. Notably, he did not propose that Congress be the final judge of its own powers, especially when Congress intruded on matters which the Constitution had reserved to the States. Rather, Jefferson argued that in such a dispute the matter should be resolved by a Convention of the States, and the States would be make the final decision. Given that 28 States have already appeared as parties in court arguing that the individual mandate is unconstitutional, we can make a good guess about what a Convention would decide about the constitutionality of the health control law.

President Obama, however, wants Obamacare to be reviewable by no-one: not by the Supreme Court, not by the States.  You can find professors and partisans who have argued for such lawlessness, but for a President to do so is unprecedented.

The People gave Congress the enumerated power “To regulate Commerce . . . among the several States.” According to the Obama administration, this delegation of power also includes the power to compel commerce. Opponents contend that the power to regulate commerce does not include the far greater power to compel commerce, and that the individual mandate is therefore an ultra vires act by a deputy (Congress) in violation of the grant of power from the principal (the People). Seventy-two percent of the public, including a majority of Democrats, agrees that the mandate is unconstitutional. Few acts of Congress have ever had such sustained opposition of a supermajority of the American public.

President Obama today has considerably raised the stakes in Sebelius v. Florida. At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies they very legitimacy of judicial review of congressional statutes–or at least those that statutes which garnered the “strong” majority of 219 out of 435 Representatives.

Adam Teicholz of the Atlantic claims that the Volokh Conspiracy deserves much of the credit or blame for the possible upcoming defeat of the individual mandate in the Supreme Court.:

Blogs — particularly a blog of big legal ideas called Volokh Conspiracy — have been central to shifting the conversation about the mandate challenges. At Volokh, Barnett and other libertarian academics have been debating and refining their arguments against the mandate since before the ACA was signed. At the beginning, law professor Jonathan Adler fleshed out the approach that came to typify the elite conservative response for the first months of the public debate: the Founders never intended for the Constitution to permit such broad federal power, but given New Deal-era precedent, the mandate, if it became law, would pass muster. Things changed on Volokh around the time that it became clear that an insurance mandate would be part of whichever health care reform package passed into law.

One congressional floor speech seemed to mark a tonal turning point for Volokh, the moment its writers realized their power to shape debate. On December 22, 2009, Democratic Senator Max Baucus quoted the post by Jonathan Adler mentioned above. Adler clearly resented that Baucus had taken his lawyerly evaluation of the case, stripped out the interesting part (that a pure reading of the Constitution weighs against the mandate, even if precedent weighs in its favor), and used it in a political context — and he responded on Volokh directly to the senator. If the world was going to use Volokh as a political tool, then he could, too. There followed months of posts by various Volokh bloggers, alongside increasingly sophisticated legal arguments, about just how reasonable, how comfortably within bounds the legal arguments against the mandate were. By the following year, a district court judge had cited Barnett in his opinion striking down health care reform, and Barnett himself had left behind his March 2010 conclusion that the Supreme Court would need to risk its credibility in a politically charged case, Bush v. Gore-style, to overturn the mandate.

I am flattered by this estimate of our influence. But there are a number of flaws in Teicholz’ account. First and foremost, it is simply not true that we all thought that the individual mandate would pass muster under current precedent until the exchange between Jonathan Adler and Senator Baucus led us to “realize [our] power to shape debate.”

We knew we had that “power” long before the Adler-Baucus debate. Several of us had influenced public debate through blogging previously. Eugene Volokh has had a lot of influence on public debate over free speech, gun rights, and other issues. Todd Zywicki’s excellent blogging about bankruptcy issues has been extremely influential for years. My own blogging about post-Kelo eminent domain reform and property rights has impacted debate over those issues, and led to invitations to testify before the U.S. Senate Judiciary Committee and other government bodies.

Randy Barnett believed that the individual mandate could not be justified under current precedent all along, which I think was also true of David Kopel. As for me, I always believed that the mandate was unconstitutional, but initially thought that it could be justified under the Supreme Court’s decision in Gonzales v. Raich (which I have long argued was wrongly decided). What changed my mind was a close re-reading of Raich with the individual mandate case specifically in mind. I obviously can’t speak for Jonathan Adler. But I suspect that the evolution of his views was similar.

Randy and I also initially believed that striking down the mandate would be more politically difficult for the Supreme Court than is likely actually to be the case. That’s because we (or at least I) failed to foresee that the mandate and the health care bill as a whole would remain so unpopular for so long. I’d like to think that some of that unpopularity was the result of our efforts. But the lion’s share was surely caused by other factors. If we really had the power to swing public opinion massively, I would long since have persuaded the public to oppose the War on Drugs and support legalization of organ sales.

Where we did have some influence is in debunking the myth that the constitutionality of the mandate was a no-brainer backed by an overwhelming consensus of expert opinion. But we could not have done that were we not 1) recognized academic experts on these issues ourselves, and 2) able to point to other well-known experts who also believed the mandate to be unconstitutional, many of them not VC-ers. The latter include such prominent constitutional law scholars as Richard Epstein, Steve Calabresi, Steve Presser, and Gary Lawson.

Randy, of course, played an especially vital role by developing crucial legal arguments that had a huge influence. But those arguments would have been of little avail if they could not persuade judges and other experts, as well as lay public opinion. The world is full of laws that are widely disliked, but have no chance of getting invalidated by a court because the arguments against them have no credibility with legal professionals.

Teichholz also errs in thinking that our arguments against the mandate fell by the wayside when the case reached the Supreme Court and the anti-mandate lawyers started using “better-trodden” arguments – implying that our points were mainly for the purpose of influencing the lay public. In reality, Tuesday’s oral argument overwhelmingly focused on the point that I and others here have been pushing for a long time: that the government’s rationales for the mandate lacks any logical limitations, and could therefore justify virtually any mandate of any kind. Several of the justices also suggested that the mandate is constitutionally dubious because it does not regulate any preexisting economic activity – the main argument that Randy has been emphasizing since 2009. Some of Justice Scalia’s questions on the Necessary and Proper Clause almost exactly mirrored the central point of an amicus brief I wrote on behalf of the Washington Legal Foundation and a group of constitutional law scholars (though I reiterate that I have no way of knowing whether he got the idea from my brief).

Finally, Teicholz writes as if it is somehow unusual for lawyers to be “waging this battle not only in the courtroom but in the court of public opinion,” suggesting that Randy’s dual role as lawyer and public advocate is particularly “unusual for an appellate lawyer.” In reality, two-track strategies in important constitutional cases are far from new. The abolitionist movement arguably pioneered this kind of approach in the 1840s and 1850s when they challenged the Fugitive Slave Act and other pro-slavery laws. The NAACP pursued a similar strategy since the early 1900s, as have feminists, environmentalists, the gay rights movement, gun rights advocates, property rights supporters and many others. Randy’s role is also far from “unusual” among lawyers involved in high-profile constitutional cases of this kind. As far back as the 1940s, Thurgood Marshall was both the lead appellate litigator for the cause of black civil rights and a major public spokesman for that cause. These historical precedents (many of them by left-wing movements) are what led me to suggest back in March 2010 that a similar strategy could work in this case.

What happened here is just one of many examples of conservatives and libertarians adapting strategies that were mostly pioneered by the political left. Such borrowing from the left is at the heart of much of what conservative and libertarian activists for legal change have achieved over the last thirty years. Ironically, some on the left don’t recognize the influence of their own tactics when they are adopted by adversaries. Perhaps they should recall that imitation is the sincerest form of flattery.

In a comment on my recent post on public opinion and the individual mandate case, University of Richmond law professor Kevin Walsh suggests that the anti-mandate forces might need sympathetic plaintiffs in order to prevail in the court of public opinion:

Some say that the challengers to the individual mandate can win even if they lose on the merits. That is, they can win the broader battle for public opinion even if they lose in the Supreme Court. I think that’s right. This kind of win is a common goal of public impact litigation. But the strategy thus far pursued by the mandate challengers differs from the strategy one often sees in such litigation. A typical strategy focuses on real people and the effect of the challenged rule on them. Not so the individual mandate challenges.

In a recent post at The Volokh Conspiracy (“Public Opinion, the Individual Mandate, and the Supreme Court”), Ilya Somin compares the potential backlash that could be generated by a Supreme Court decision upholding the constitutionality of the mandate with the backlash generated by the Kelo case. The Supreme Court held in Kelo that government can use its power of eminent domain to take the property of an individual for use in a private party’s redevelopment efforts. The idea was that this would serve a “public use” by generating more tax revenue. One of the strategies of the challengers in Kelo was to highlight the plight of a particular individual, Susette Kelo, showing how the government was going to affect her life by taking her house away.

Contrast this strategy with that pursued by the individual mandate challengers. They have focused on the deprivation of liberty inherent in being ordered by the federal government to enter into, and stay in, an economic relationship with another private party. But this focus has not involved real people. Perhaps understandably, the mandate challengers have thus far chosen not to focus on the plight of particular individuals....

It’s certainly true that sympathetic plaintiffs are always helpful for public relations. But they are not essential. The anti-mandate forces are winning the public relations battle even without them, as we can see from polls showing that the vast majority of the public wants the Court to strike down the mandate. Sometimes, focusing on general principles is as much or more effective than focusing on tearjerking individual stories.

This is not the first major constitutional case in which the plaintiffs’ lawyers managed to win in the court of public opinion while downplaying the individual stories of their clients. As co-blogger Dale Carpenter shows in his excellent recent book on Lawrence v. Texas, the lawyers in that case deliberately shielded their clients from public scrutiny in large part because they were likely to seem unsympathetic to the public (both men had criminal records for minor offenses, they were not in a longterm relationship with each other, and they quite likely did not actually have sex the night they were arrested).

By focusing on the general principle that it is wrong for the government to prosecute people for consensual gay sex, the pro-gay rights side in Lawrence managed to win over the majority of the public, as well as the Supreme Court justices. The anti-mandate forces are trying to pull off a similar victory by focusing on the general idea that it is dangerous to give Congress a blank check to enact whatever mandates it wants. This strategy has been very successful with the general public, though it remains to be seen whether it will work with the justices.

Walsh also argues that the diverse circumstances of individual plaintiffs justify 6th Circuit Judge Jeffrey Sutton’s approach of barring facial challenges to the mandate and instead forcing plaintiffs to make individual as-applied challenges. I criticized Sutton’s theory in detail in this post.

UPDATE: Timothy Sandefur of the Pacific Legal Foundation points out that at least some of the anti-mandate cases do have sympathetic plaintiffs:

Prof. Kevin Walsh thinks opponents of the Individual Mandate should have found a sympathetic client. How about PLF client Matt Sissel?

A decorated Iraq War veteran (a Medic, incidentally) as well as an entrepreneur and a talented artist, Matt started a business to sell portraits and other artwork. He doesn’t buy health insurance because it doesn’t make financial sense for him to do so, given his other financial commitments, his health, and so forth. But thanks to the Mandate, he’s forced to buy insurance he doesn’t need with money that would be better spent growing his business, in order to subsidize insurance companies, who are, in turn, forced to provide insurance to people who are already sick.

Sissel tells his own story here. He certainly seems like a sympathetic plaintiff to me.

Sissel’s case, of course, is not the one before the Supreme Court right now. But one of the plaintiffs that is before the Court is the National Federation of Independent Business, the nation’s largest small business organization, which likely has members who are small businesspeople that find themselves in a situation similar to Sissel’s.

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.

Although it has been pushed out of the US headlines by the New Hampshire primaries, radical Islamist parties just won the lion’s share of the vote in the final round of the Egyptian elections.

I wrote about why this sort of development was a likely and dangerous possibility in several posts going back to the very beginning of the “Arab Spring” (see here and here). If the Islamists consolidate power and make serious progress towards implementing their agenda, Egypt 2011-12 could easily join Russia 1917, Cuba 1959, and Iran 1979 as a classic historic example of a case where a bad regime was overthrown only to be replaced by one that is much worse. Obviously, the future course of events is far from certain. It is not yet clear how much power the Islamist parties will actually get to wield, and the larger of the two may be internally divided about its agenda. But developments to this point have been far from positive.

In every election year, politicians and pundits routinely attack negative campaigning, claiming that it is somehow inappropriate or harmful. This year, Newt Gingrich has been complaining about it especially loudly. But many others have said similar things.

As I see it, negative campaigning is just as useful and just as legitimate as the positive kind. In assessing candidates for public office, we need to know about their weaknesses as well as their strengths. When an employer chooses who to hire for a job, it would be foolish for him to consider only the fact that a given applicant is intelligent and knowledgeable, while ignoring evidence showing that he or she is, say, lazy and unreliable. The same goes for the process of hiring people for powerful political offices, which is ultimately what elections are all about.

Moreover, it’s important to remember that elections are comparative evaluations. We don’t just want to know how good Candidate A is. We want to know how he or she compares to opponents B, C, and D. In making such comparative judgments, negative information is just as important as the positive. Perhaps you think that Republican front-runner Mitt Romney has only modest strengths. But you might still vote for him as a lesser evil if you think his leading rivals are all truly awful. The same goes for the general election choice between the GOP nominee and Obama. You could end up preferring one of them to the other primarily because they seem to be a lesser evil than the alternative.

Obviously, negative campaign ads are sometimes inaccurate or misleading. But the same is true of positive ones. Candidates routinely exaggerate their supposed virtues and achievements. The reality of widespread political ignorance often allows politicians to get away with making false or misleading claims. But negative claims are no worse in that respect than positive ones.

Another common criticism of negative campaigning is that it leads voters to have a more negative view of the political process and to distrust government. Experts disagree about whether and to what extent this is true. But even if it is accurate, it may not be a bad thing. If voters have a more negative view of politicians and government, it might lead them to be more hesitant about entrusting those same politicians with ever-greater power. The dubious nature of most politicians is one of the reasons why it is important to restrict the size and scope of government.

UPDATE: I should mention political scientist John Geer’s 2006 book finding that negative ads actually give voters more useful information about candidates’ issue positions than positive ads do [HT: VC reader Joshua Spivak, who wrote a nice 2010 Forbes article describing some of the benefits of negative campaign ads].