Antonin Scalia, Election 2012, Health Care / Medicine, John Roberts, Politics, SCOTUS, Supreme Court

The Not-So-Young and the Restless: Drama at One First Street?

Are Justice Scalia and Chief Justice Roberts on the outs over Obamacare? And how has public opinion of the Supreme Court shifted in the wake of the Affordable Care Act decision?

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Here’s a summary of the polling data, from the New York Times:

The American public’s satisfaction with the Supreme Court, which had already been low by historical standards in recent polls, dropped further in the wake of the court’s 5-to-4 ruling last month upholding President Obama’s health care overhaul law.

The nation is now evenly divided, with 41 percent of Americans saying they approve of the job the court is doing and the same share voicing disapproval, according to a new poll conducted by The New York Times and CBS News. In a poll a few weeks before the health care decision, the court’s approval rating was 44 percent and its disapproval rating 36 percent.

As the old saying goes, if you play with fire, you get burned. When the Supreme Court tackles hot button issues, it sometimes suffers a decline in approval. But — and I’m reminded here of Bush v. Gore, which Justice Scalia also discussed with Morgan — sometimes ruling on these issues is unavoidable. As Justice Scalia noted when I saw him speak earlier this year up at Wesleyan, how could Bush v. Gore not have been decided by the highest court of the land? Of course a case of that importance was going to get ruled upon by the Supreme Court of the United States (as opposed to the Florida Supreme Court — no offense, Florida).

Also, trying to sustain a high public approval rating may be something of a fool’s errand. Again from the NYT:

More than half of Americans said the decision in the health care case was based mainly on the justices’ personal or political views. Only about 3 in 10 of them said the decision in the case was based mainly on legal analysis.

With all due respect to We the People, how would they know? How many of them have even read all of the opinions — almost 200 pages worth — in the Sebelius case? Or the underlying precedents discussed in the dueling opinions? The question of why the justices voted as they did has been hotly debated even among law professors — people who have read the relevant opinions, precedents, and academic literature about judicial decisionmaking (e.g., Randy Barnett, Orin Kerr, Ilya Somin, Nicholas Quinn Rosenkranz, Rick Hasen, and many others). How would an ordinary citizen develop a sound opinion on these complex issues?

Americans excel at forming opinions about things they know nothing about. Maybe they should join us here in the blogosphere.

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Disclosure: Last month, on my birthday, Justice Scalia sent me a signed copy of Reading Law (affiliate link). Thank you, Your Honor!

Scalia dismisses talk of internal court rancor [CNN / Piers Morgan]
Even in dissent, Scalia stirs controversy [CNN]
Justice Antonin Scalia on 2000’s Bush v. Gore [CNN / Piers Morgan]
Justice Antonin Scalia on SuperPACS vs. the First Amendment [CNN / Piers Morgan]
Justice Antonin Scalia on the confrontation clause, justice partisanship, and hunting with Dick Cheney [CNN / Piers Morgan]
Scalia Says He Had No ‘Falling Out’ With Chief Justice [New York Times]
Public’s Opinion of Supreme Court Drops After Health Care Law Decision [New York Times]
The Mystery of John Roberts [Opinionator / New York Times]
Thursday round-up [SCOTUSblog]

Earlier: Justice Scalia Goes to Wesleyan
Justice Scalia at Wesleyan: Now With Photos and Video

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