Health care case damaged reputation

analysis

Adam Liptak / New York Times News Service /

Published Oct 2, 2012 at 05:00AM

WASHINGTON — In June, the Supreme Court pulled off a neat trick. By upholding President Barack Obama’s health care law, it simultaneously bolstered public support for the law and hurt its own reputation.

That puts the health care case, a new study concluded, “in a public opinion class by itself among Supreme Court opinions.”

The complicated reaction to the most important case of the last term may weigh on the justices, who started a new term on Monday.

Andrea Campbell, a political scientist at the Massachusetts Institute of Technology and an author of the study, said the aftermath of the health care decision surprised her.

“It does seem unprecedented that the court would uphold a law and increase support for it,” she said, “and still experience a hit to its own approval and standing at the same time.”

It is unusual enough for the Supreme Court to influence public opinion in the first place, partly because people generally pay very little attention to its work.

When the court does have an impact, it is typically limited to setting the agenda, to thrusting previously ignored issues to the forefront of public discussion. In a new book called “From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage,” Michael Klarman, a Harvard law professor, gave some examples.

“Americans were not preoccupied with flag burning until the Supreme Court issued two controversial rulings on the subject in 1989 and 1990,” he wrote. “Within six months of a 1990 Supreme Court decision involving the right to die, half a million Americans drafted living wills.”

Along these same lines, you will be hearing more about affirmative action in the coming months, thanks largely to a new case challenging race-conscious admissions at the University of Texas.

But that does not mean the eventual ruling will change anyone’s mind about whether it is a good idea.

When a court decision does have an effect, it is often negative, at least in the short term.

That was, by many accounts, what happened after Brown v. Board of Education, the 1954 decision that called for desegregation of public schools, and Roe v. Wade, the 1973 decision that recognized a constitutional right to abortion.

“Both produced dramatic political backlashes,” wrote Klarman, “even though opinion polls showed that half the country supported those rulings when they were decided.”

The health care decision seems to tack in the other direction, said Barry Friedman, a law professor at New York University.

“Earlier studies have tended to find that the Supreme Court does not bring people along with its decision by giving its imprimatur,” he said. “The more common reaction is backlash.”

The Supreme Court’s approval ratings are not terrible, but they tested historic lows shortly after the health care decision. They had dropped along with those of the government generally, but they remained much higher than those of Congress, the news media, big business and labor. The military, the police and religious institutions enjoyed more respect.

The Supreme Court is sometimes said to follow public opinion or at least not get too far out ahead of it. The decision in the health care case is not good evidence of this, as at least the central part of the law was quite unpopular.

The new study, from Campbell and Nathaniel Persily, who teaches law and political science at Columbia, will be published next year as part of a book from Oxford University Press. It argues that the response to the health care decision may have had something to do with the nature of the court’s action.

In the few cases that command the public’s attention, Campbell said, the court often strikes down the law under review. Here, the court stepped back and deferred to Congress and the president.

Perhaps inevitably, given the current political climate and how closely the health care law was associated with Obama, that decision gave rise to distinctly polarized reactions about the court. More than half of Republicans expressed disapproval of its work shortly after the decision, compared with just over a third shortly before. Disapproval among independents rose to 43 percent from 32 percent. Only among Democrats did disapproval hold fairly steady, at about a third.

“The case may exist,” the study concluded, “as the most polarizing instance of judicial restraint on record.”

At the Supreme Court

Cases on the court’s docket:

• The Supreme Court seems torn on when the law should treat some floating homes as houseboats and when it should treat them as houses.

The question came up Monday as the court was trying to figure out whether Riviera Beach, Fla., should have used maritime law to seize Fane Lozman’s floating home.

Lozman said the gray, two-story floating structure was not a boat, so he should have had some of the same protection against seizure as a land-based house. But the city and the lower courts all said that since it had been towed several times to different marinas across hundreds of miles, it was a vessel like a houseboat.

A ruling, which will be watched closely by floating casinos, hotels and restaurants, will come later this year.

• The court declined to hear an appeal from a national anti-gay marriage group that tried to thwart Maine’s campaign disclosure law requiring it to release its donor list, but it’s unlikely the list will be made public soon.

The court turned aside an appeal from the National Organization for Marriage, a Washington, D.C.-based group that donated $1.9 million to a political action committee that helped repeal Maine’s same-sex marriage law in 2009.

Coming up

The court has agreed to hear the following cases:

Racial preferences: In Fisher v. University of Texas, to be argued Oct. 10, the court will weigh Texas’ limited use of race to help fill out its incoming classes. The outcome could result in a major cutback in the use of racial preferences at the nation’s colleges.

Accountability for human rights abuses: The justices will consider whether American courts may be used by foreign victims to sue over human rights violations abroad. The case of Kiobel v. Royal Dutch Petroleum, to be argued on Monday, concerns claims that the oil giant Shell was complicit in atrocities committed by the Nigerian government against its citizens in the oil-rich Niger delta.

Drug-sniffing dogs: Two disputes involving drug-sniffing dogs will be heard by the court on Halloween. In one, the question is whether a dog brought to the front door of a home to sniff for marijuana amounts to a search. In the other, the court will consider a dog’s reliability and qualifications as a drug-sniffing animal in a case involving a traffic stop and a warrantless search that found the ingredients for making methamphetamines in a pickup truck.

Fighting terrorism: The government is trying to shut down a constitutional challenge to a law that lets the United States eavesdrop on overseas communications. Lawyers, journalists and human rights advocates filed a lawsuit that objected to the latest version of the Foreign Intelligence Surveillance Act. The issue at the high court, to be argued Oct. 29, is whether the law’s challengers are entitled to make their case in federal court.

— From wire reports