Can Obama Sway the Supreme Court?

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Constitutionally, President Obama is powerless to sway the Supreme Court's June decision to uphold Obamacare, but the one tool he has left is the bully pulpit. On Monday, he took advantage of this, speaking directly to voters about the constitutional soundness of his health reform bill. "Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress," Obama said. It's not clear how forcefully Obama plans to rally public opinion behind his cause but doing so could be an effective backdoor to influencing the court.

According to a Supreme Court scholar Barry Friedman, the high court may not be legally bound by public opinion, but it is heavily influenced by it. In his 2009 book The Will of the People, Friedman tracks the relationship between public opinion and the high court and finds an institution highly-sensitive to it. "Chief Justice Roberts himself has acknowledged in interviews that the justices are concerned about the legitimacy of the Court and reluctant to decide cases in ways that will imperil that legitimacy," wrote Friedman. "His predecessor, William Rehnquist, made a similar point, explaining that the justices live in the world and are influenced by the same forces that affect the rest of us." In a more recent essay in The New Republic, Friedman noted that the current court will be especially cautious about rocking the boat. The court is "very sensitive to the possibility of backlash against its actions; and if anything, the heated reaction to its recent decision striking down campaign finance restrictions on corporations is only likely to make it more so." The same phenomenon was tracked in an academic paper by Cornell University professors Christopher Casillas and Peter Enns and Washington University in St. Louis professor Patrick Wohlfarth, who found that the court's decisions "consistently respond to changes in public opinion." 

But for the public to hold sway over the court, the president needs to get them on his side, and as it stands, the public is split on how the court should rule. As The Washington Post's Greg Sargent notes, "The polling on repeal is mixed — while one recent poll found support for striking down the mandate, others have found little support for repeal of the whole law. So it’s unclear how the public will react if the Court’s decision ends up doing away with the law." One thing that is clear, if the president wants to launch a campaign to get the public behind him, he needs to act quickly. While a ruling isn't expected until June, the most important deliberations are going on now. On Friday, the court voted on the fate of the bill but, as the Associated Press noted, "In the weeks after this meeting, individual votes can change. Even who wins can change, as the justices read one another's draft opinions and dissents." 
Since most legal experts agree the final decision is likely to be a 5-4 vote, the president would be wise to do anything within his power to influence a swing vote on his signature legislative achievement. So the question stands before him: Will he rally to save Obamacare?


This article is from the archive of our partner The Wire.