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).