A handful of right-wing legal experts have changed the way Americans view the Affordable Care Act. But why did they wage this battle in the media instead of in the courtroom?
Back in early 2010, before the 26 state attorneys general, before the angry protests and the breathless headlines, before the six hours of oral argument at the nation's highest court, the legal challenge to the individual mandate was greeted with head-scratching skepticism. The constitutional argument was dismissed by many Court-watchers. A week after the first challenge was filed, one liberal scholar suggested the claims were so frivolous that the lawyers could face sanctions.
Now, however, the atmosphere has changed, "and that," Adam Liptak, Supreme Court correspondent for the New York Times, told me last week, is in part "a testament" to the persistence of a small group of conservative and libertarian attorneys. In the last few days, Politico and the New York Times have shone a light on Randy Barnett, the Georgetown Law professor who has taken on the dual role, unusual for an appellate lawyer, of spearheading advocacy both in court and in more public forums.
In December 2009, when Barnett coauthored a paper calling the individual mandate unconstitutional, his ideas were outside the mainstream. But a year later in Virginia, U.S. District Court John Henry Hudson used the same language when he overturned the law in his courtroom. On that day of that decision, Barnett told Politico, a left-wing legal expert sent him an email saying, "As of this morning, your theory is officially not frivolous anymore."
Stories like these provide a window into a conversation that has not proceeded much beyond the dazed wonderment of academics for about 18 months. But they leave a crucial question. Why have armies of scholars and commentators spent two years waging this battle not only in the courtroom but in the court of public opinion?
Barnett demurs when pressed on the question of the influence of his public arguments on the courts. "It's not like I'm the Alec Guinness character in Star Wars," he told me, "and I'm able to wave my hand and say, 'These are not the droids you're looking for.' . . . All I'm doing is making legal arguments." But Dahlia Lithwick, writing in Slate last week, thinks the outcome of the case has "everything" to do with "optics, politics, and public opinion."
The notion of extralegal influences on judicial outcomes is anathema to many lawyers' vision of their craft. Lawyers talk about law to outsiders using a science-like vocabulary of inputs and outcomes, logic, and deduction. Judges are proud that 90 percent of appellate decisions are unanimous. Lawyers, particularly conservative ones, steel themselves against the public's sense that judging is politics, or, worse, just vague Solomonic wisdom. "I do think there is a right answer in a case," said John Roberts at his Supreme Court confirmation hearings. "If judges do the work and work hard at it, they're likely to come up with the right answer."
The empirical study of optics and public opinion usually happens therefore not in law schools but in political science departments. When I asked Barnett what role atmospherics play in his classroom and in his practice, he answered quickly, "I teach constitutional law. I don't teach the political science part." He added, "As a litigator, I'm not really thinking about it at all." Yet, as we've seen, all sides are waging a vigorous messaging campaign surrounding the constitutional challenges to the individual mandate.
And from the start, its prominent challengers have seen politics as central to the outcome of the case. In March 2010: "[W]hat if five justices think the legislation was carried bleeding across the finish line on a party-line vote over widespread bipartisan opposition? Then there might just be five votes." November 2011: "The Republicans on the Court will undoubtedly be less likely to support a law passed with only Democratic support." March 2012: "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."
Barnett caveats, "I am not suggesting that the Supreme Court would strike down the individual mandate simply because a majority perceived it to be unpopular." But he does think that "if the Court views the Act as manifestly unpopular, there may well be five Justices who are open to valid constitutional objections they might otherwise resist" -- and the evidence suggests he's right.
Studies Have Shown...
The arc of the academic literature about public opinion and Supreme Court outcomes is long, but it bends, unlike most academic literatures, towards an actual conclusion. Taken as a whole, studies suggest that context matters, and that political atmosphere affects decisions over time.
The studies take one of two basic approaches. The first focuses on elite opinion and smacks of social psychology. According to Kevin McGuire, political science professor at UNC, this school of thought says that judges, like members of any subculture, care about what people like themselves think.
McGuire pointed to one study that compared Democratic and Republican appointees who were living in Washington with those who came to Washington from outside the Beltway. Among the four different categories (Republican/Democrat, Living in Washington/Living outside Washington), only Republican appointees from outside Washington, suddenly immersed in the liberal elite legal social circles, showed a "marked tendency" towards ideological drift: Whether at the middle-school lunch table or at Katherine Graham's dinner table, people conform to their peers. (McGuire suggests this phenomenon may be in decline, though, due to the 30-year rise of elite conservative legal culture through organizations like the Federalist Society.)
The second approach, which is based on behavioral economics, is subtler and more data-driven. It starts with the premise that, as the Court itself has pronounced, "the Court's authority - possessed of neither the purse nor the sword, ultimately rests on sustained public confidence in its moral sanction." Indeed, from Andrew Jackson's simply ignoring its mandates to FDR's threat to break its intransigence by adding pliant justices, the high court has not infrequently had to worry about being taken seriously. The Court itself hasn't lessened this perception by backing off decisions on integration and the death penalty. Because justices are rational actors, the argument goes, there will inevitably be some influence of extralegal factors.
To test this, UNC's McGuire and his coauthor code for ideology first public opinion (using coauthor James Stimson's awesome Public Policy Mood) and then various potential outcomes for Supreme Court litigants in carefully controlled cases. Looking for correlations, they conclude, "we have found that the Court's policy outcomes are indeed affected by public opinion ... to a degree far greater than previously documented."
When it comes to health-care reform, the country has been wrestling with the Constitution in a new and changeable cultural context. Technology means communication with elite opinion-makers has never been easier (the echo chamber is louder), and our political culture means elite and popular conversations are more merged than ever (the echo chamber is bigger).
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. The answer had become clear to him under existing precedent; he now felt certain that the mandate was a goner.
Barnett says he blogs on Volokh as an "opportunity to refine legal arguments in response to pushback." He agreed to attend a Washington University panel on "Bloggership," the confluence of scholarship and blogging, but he played Pinky ("Blogging...can contribute constructively to one's scholarship...but it would be a mistake to confuse" them) to Volokh-founder Eugene Volokh's Brain ("Maybe, when I'm in the middle of writing a law review article, I should ask myself: Shouldn't I be spending this time blogging instead?"). Yet Barnett also acknowledges in conversation that "justices, law clerks, lawyers, legal writers" are "a part of the legal culture and I'm part of the legal culture." Trying to convince that set of people that your arguments are "on the wall," he continued, is just "standard law practice."
And two former Supreme Court clerks confirmed that online ideas and moods "definitely reach clerks, and can inform thinking of the bench memos," the documents clerks write to prepare their justices for oral argument and opinion-writing. And blogs like Volokh certainly have increasing influence over the traditional media. Liptak of the Times said that he takes note of what legal blogs have to say about cases he's covering.
So what gets broadcast in the echo chamber is louder now that it ever has been. But the chamber is getting bigger, too. The "legal culture" to which Barnett refers now encompasses more than just justices and legal writers. Liptak says that smart legal bloggers get noticed and allow journalists to hear voices outside the "same handful of people" they would normally consult on hard questions.
But the democratization goes deeper than that. The conservative legal movement that started in the Reagan era brought along with it a new legal populism. The Tea Party, with "taking back the Constitution" at the center of its rhetoric, has only further spread the idea that elites have hijacked the judiciary, obscured the Constitution's clear meaning, and used the courts to further a leftist political agenda.
Whatever the merits of those claims, it started a national, popular conversation about the Constitution. Today, 79% of Americans say they understand "some" or "a lot" of the Constitution, and more than 70% of Americans believe they know enough about the health-care reform challenges to form an opinion about whether an individual insurance mandate exceeds constitutional boundaries.
That opinion, astonishingly, turns out not to be just a reflection of how respondents feel about the mandate generally. Polling about Supreme Court cases tends to reflect people's views of the phenomenon in question: If you're pro-choice, you think that Roe was properly decided. But in polls about the Affordable Care Act, there's no discernible correlation between support for the mandate itself and perceptions of its constitutionality. In March 2010, when pollsters first asked the public's opinion on the lawsuits, Americans were more or less evenly split, with 46% saying the mandate was constitutional. This month, it's 28%. This happened while support for the law as a policy matter, while consistently low, has stayed steady or increased.
The way conservatives have framed this issue also makes the public feel more confident about discussing it in a substantive way. "When interpretation can be explained in simple and unadulterated terms" like originalism, writes Jamal Green, "it need not be mediated through elites." And what could be simpler than activity v. inactivity? In his Virginia v. Sebelius ruling, Judge Hudson brought those two words into the mainstream discourse. He argued that an individual's failure to purchase insurance was inactivity, not activity -- therefore, it couldn't be mandated through the Constitution's commerce clause.
Americans today are especially excited by reasoning that makes the Constitution feel more accessible. Back in 1955, when John Marshall Harlan was nominated to the Supreme Court, the judiciary committee asked him just three questions about his "constitutional methodology." In 2005, at John Roberts' televised hearings, the nominee was asked 135. There's now a political constituency that supports a particular approach to constitutional adjudication. And that constituency is now deeply engaged in the health care debate -- if not reading the Volokh Conspiracy then feeling its second-hand influence ripple through the public consciousness.
Nobody Here but Us Chickens
When it came down to it, however, Barnett chose not to be the man who appeared in front of the justices to argue on behalf of his client, the National Federation of Independent Business. Maybe it was because he worried he had become associated with the public scrum. Regardless, oral argument went to Michael Carvin, a practitioner through and through, first at the Department of Justice and then as a partner at Jones Day. There was no hint, either from either Carvin or the justices, that the public discourse had reached the hallowed chamber.
As for the distinction that has so captured the public imagination, Carvin didn't mention it. Justice Elena Kagan had to bring it up, and upon further challenge by Justice Samuel Alito, Carvin backed off a bit. "The words 'inactivity' and 'activity,'" he conceded, "are not in the Constitution." Then he quickly shifted the debate to better-trodden constitutional ground.