Two law professors have found that it's not who makes a public policy decision but the nature of the decision made that's key to its acceptance.


Justice Breyer holds the Affordable Care Act aloft during oral arguments at the Supreme Court. Reuters

The politics of hedging have officially begun. With the Supreme Court not set to deliver its ruling on the constitutionality of the Affordable Care Act (ACA) until June, pundits and politicians on both sides have worked furiously to square any potential result against the political impact it could have in November. Legal guru Jeffrey Toobin kicked things up roughly one million notches last week when he declared the constitutionality of the individual mandate DOA, with the forthcoming decision by the court a veritable "train wreck" for the Obama Administration.

But what if -- as predicted by a recent survey of Supreme Court clerks -- the ACA ends up being ruled constitutional, in whole or in part? Everything we've seen about the law so far suggest it would still be unpopular.

A recent Gallup poll found that an astounding 72 percent of respondents thought the individual mandate in the law is unconstitutional, and a CBS/New York Times poll released last week showed the bill was popular with only 36 percent of those surveyed. And the oral arguments before the court last week only served to make the law even less popular in the public imagination, according to the Pew Research Center, with 23 percent of those surveyed saying they had a less favorable view of it at the end of arguments, as compared to 7 percent with a more favorable view.

In other words, the noise surrounding the upcoming Supreme Court ruling may have obfuscated an even deeper problem for Obama when it comes to the signature domestic policy achievement of his administration: Even if the law is upheld, it will hardly make it ratified in the eyes of the American public.

George Washington University Law School professors David Fontana and Donald Braman have new research to support that view. In their Columbia Law Review article "Judicial Backlash Or Just Backlash? Evidence from a National Experiment," Fontana and Braman describe an experiment using fictional court decisions -- on gay marriage and gun control -- to gauge the reactions of voters on a simple question: "Does it matter to members of the public whether it is the Supreme Court or Congress deciding important constitutional issues of the day?"

As it turns out, the held belief that "The public has a more negative reaction to controversial decisions when the Court makes them" may be untrue. In a January article for The New Republic, Fontana and Braman concluded that their research showed that "Americans of all stripes -- conservative and liberal, pro-gay and anti-gay, pro-gun and anti-gun, political junkies and political neophytes -- do not have a more detrimental reaction to big decisions just because the Court made them." On topic after topic, the results were the same: court rulings on controversial laws elicited similar reactions to decisions made by the legislative branch.

What can the fictional rulings on gay marriage and gun control tell us about health care? Mainly, that people who oppose the individual mandate and Obama's health-care reforms aren't likely to feel differently about the changes in light of a court affirmation. Indeed, polling on the ACA has been remarkably consistent since it was enacted in 2010.

"Our findings are enough to suggest that how Americans think about the Supreme Court is perhaps not so different from how they think about the rest of the federal government," the professors wrote.

Though Obama, the professors remind, once argued in The Audacity of Hope that "in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy," that faith seems sure to be tested in the White House as it awaits a ruling. The uniquely political nature of ACA -- it passed on a final partisan vote of 219 to 212 after a bitterly protracted process -- is likely to make it a political hot potato even if the court affirms it.

"If the Supreme Court upholds everything, that works to the GOP's election advantage," argues Jim Frogue, the conservative co-founder of the political consulting firm FrogueClark. "Yes, Obama and his team will declare victory, but the GOP message becomes, 'So electing Romney and a GOP Congress is now definitely the ONLY way to get rid of this law that over half of likely voters have wanted repealed since the bill was signed into law two years ago.'"

Still, Obama has proven adept at divorcing his own popularity from ACA in the past, and his likely opponent, former Massachusetts governor Mitt Romney, brings his own complicated history with mandate-supported health reform into the equation.

But while Democrats anticipated the political backlash against health-care reform in the 2010 elections, now a new question is unfolding. How long will the political specter of the ACA continue to haunt them?

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