The constitutional question of our generation is now being argued before the U.S. Supreme Court. The challenge, known as U.S. Department of Health and Human Services v. Florida, asks nine justices whether the federal government can really require everybody to have health insurance. It is fundamentally a question about the extent and limits of government power. It is also a political and historical judgment on the signature domestic policy of the Obama administration.
For many observers, the key to its outcome is in the pens of the five Republican-appointed justices who, it is thought, are far more likely than four Democratic-appointed justices to strike down the law, passed by Congress in 2010. But off to the side in every U.S. Supreme Court ruling is the Real Court -- a court often uninformed and uninvolved, and far more fickle than the Supreme Court, but ultimately far more powerful.
The judgments of public opinion are frequently wooed, consulted, fretted over, and feared by elected politicians, but not so much by the lifetime-appointed Supremes. Yet, central to the success or failure of the Patient Protection and Affordable Care Act and crucial to the legacy of President Obama will be this other court, consisting of tens of millions of judges who may favor or oppose the health insurance reforms, but actually have doubts about this bill's legal standing.
Many polls have frequently measured the public's attitudes towards the bill, searching for clear evidence of the public's pleasure or displeasure, or signs of a dramatic shift. The polls naturally pose broad questions to citizens about a complex and lengthy bill which, let's be frank, people have not read. Some polls ask the public, in effect, to play the role of consumer, asking them "Do you think the reform will help or hurt your family?" Some ask the public to play the role of executive, asking "do you approve or disapprove" of the bill. Others want them to be legislators, asking "Should the bill be repealed, amended, left alone, or extended?" Still others ask the public to play the role of patriot and fortune-teller: "Do you think the reform will help or hurt the country?"
All these have produced mixed results so far, yet often lean in favor of the bill, thus encouraging supporters.
But one poll asked voters to play another role, the role of jurist -- the same role the nine justices are now playing. A Fairleigh Dickinson University study asked the national public whether or not Congress can legally require everyone to have health insurance, and the results are not at all encouraging to supporters of Obamacare.
Regardless of whether voters approve or disapprove of the bill, a significant majority think Congress cannot legally require Americans to buy health insurance. By a margin of 56 to 34 percent, voters in the poll found the key provision of the bill, in effect, unconstitutional. And when they were asked more specifically whether a tax penalty can be imposed on those who don't have health insurance, almost two-thirds of them said this was not legal.
Perhaps mimicking the Supreme Court justices themselves, both Democrats and self-described liberals in that poll were more likely than others to say the mandate is constitutional. But asked whether it is legal to impose a tax penalty on those without health insurance, even Democrats and liberals in the poll were ambivalent. In other words, even voters inclined to support the bill had doubts about its constitutionality.
Of course, some consider questions of constitutionality posed to the public to be unhelpful, irrelevant, or dangerous. Many are quick to say the Court should not be consulting polls. But alas, no justice is immune from public opinion, if only because he or she was once part of that public, came through a public confirmation process, and still follows media saturated by public opinion.
In fact, scholars observe that the Court is historically reluctant to oppose public opinion, and political scientists note that public opinion is critical to enforcing the Court's opinions long after they are announced. Thus, this week, President Obama, a former constitutional law professor will need to speak not only to the justices of the Supreme Court, but to the public, to explain how the law is a valid extension of the powers of Congress.
Peter J. Woolley and Bruce Peabody are professors of political science at Fairleigh Dickinson University in Madison, New Jersey. Woolley directs the university's polling group, PublicMind. Peabody is the author of The Politics of Judicial Independence.