After a rough week, a near consensus has emerged that Obamacare has a murky future. Liberal pundits are reeling: Dahlia Lithwick is palpably depressed, and Jeffrey Toobin — so recently heard predicting that the ACA would be upheld by an 8-1 majority — is now characterizing the proceedings as a “train wreck for the Obama Administration, and it may also be a plane wreck.” On the other hand, Philip Klein of the avowedly right-wing Washington Examiner encapsulated the opposition’s mood of gleeful triumphalism when he tweeted, “Clement channeled Michael Jordan, Verrilli channeled Scott Norwood.” (But see: Elie’s lonely defense of the Solicitor General.)
Before the arguments commenced, we asked our readers for their opinions and predictions on the case: Will SCOTUS uphold the ACA? Should it? 1,100 of you weighed in.
After the jump, we’ll look at the results of our survey, and sample some representative reader comments. (Here is an example of a non-representative reader comment: “I hope the law is overturned. I am a Christian Scientist and have not been to the doctor in 40 years.”)
Some key findings from our survey include:
- 55% of respondents believe that the ACA is constitutional; 45% disagree.
- Of the “ACA is constitutional” camp, 81% believe that SCOTUS will uphold the law.
- Of the “ACA is unconstitutional” group, 74% believe that the law will be overturned.
- Significantly more of the “unconstitutional” group believe that the decision will be a 5-4 split (70%), as opposed to 52% of the “constitutional” crowd.
In the run-up to the arguments, the American Bar Association published a special edition of its publication Preview of United States Supreme Court Cases, “Health Care and the High Court.” In it, the ABA published the results of its survey of a “select group of academics, journalists, and lawyers who regularly follow and/or comment on the Supreme Court.” A whopping 85% of this elite club predicted the ACA would be upheld. Compare this with the 48% of ATL respondents who predict the opposite. Clearly our readership encompasses a much more diverse range of views than the “expert” group. Whatever ATL is, it’s not an echo chamber.
Recent research shows that after a decade of polarizing cases (Bush v. Gore, Kelo, Hamdan, Citizens United, etc.), public esteem for the Supreme Court is at a low ebb. A 2011 Harris poll found that a mere 24% of adults have “a great deal of confidence” in the Court. Also last year, a joint GWU/Duke study found that a full 70% of the public believes that the Court’s decisions are driven by political considerations. Yet our own survey found overwhelming majorities in both political camps — and about 80% of all respondents — believing that the Court would do the correct (i.e., “constitutional”) thing in deciding the case. Doesn’t that show, among lawyers and law students, a higher level of confidence in the integrity of the Court? Unless, of course, only a Pollyanna would fail to realize that the definition of “constitutional” has been debased to the point where it is just another synonym for “politically preferable.”
Survey respondents were also asked to freely comment on any of the legal or political aspects of the case. In both partisan camps, a few distinct and recurrent themes emerged.
On the Left:
- Roberts will write the opinion. (“He votes last and will vote with the majority so he can assign the opinion to himself.”)
- This case should be a slam dunk for the administration based on stare decisis and existing commerce clause limits. (“Wickard establishes that certain inactivity CAN be regulated … the individual mandate is part of a broad regulatory scheme that regulates a field undeniable within the realm of interstate commerce.”)
- The mandate is analogous to social security, Medicare taxes, car insurance and a bunch of other things. (“Government can and does compel people to purchase things constantly.”)
- Conservative justices are hypocrites regarding states’ rights (“They are willing to toss out state laws that protect consumers and labor.”)
- Clarence Thomas jokes never get old. (“He is getting bored and probably needs a nap.”)
On the Right:
- Kagan should have recused herself. (By far, this was the most common comment among all respondents.)
- The individual mandate is unprecedented in its awfulness. (“[T]he worst abuse of congressional power in the history of our government.”)
- Slippery slopes/flood gates/compulsory broccoli (“What in our lives could not be regulated based on health and safety concerns?!”)
- We’re all doomed (“One more step in the march to a Marxist dictatorship under the UN New World Order.” “If this passes, I’m going John Galt…”)
Earlier: Prior ATL coverage of Obamacare