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Will the Court Follow the People?

Ever since the Supreme Court listened to oral arguments about the constitutionality of Obamacare, the administration and its supporters have been doing everything in their power to influence the justices to leave the president’s signature legislative achievement in place. In particular, Chief Justice Roberts and other conservatives have received not-so-subtle hints that their legacies will be judged by whether or not they allow the law to stand. I doubt that Roberts cares very much about the opinion of the president or the New York Times, but there is a school of thought that wonders about whether Justice Kennedy — the quintessential swing voter on the court — might be influenced in that fashion. However, there is the old axiom that the Supreme Court follows the election returns.

Historically, the court has, after its own fashion, validated that observation, often granting its judicial seal of approval to certain trends only after they have seen the advocates of constitutional positions triumph at the polls. The problem with this is the people can change their minds every two or four years, but once the court settles on an opinion it can be set in stone for a generation or more. Thus, it is with no small interest that we look at polls about the constitutionality of ObamaCare, a decision on which will be handed down within weeks. Rasmussen’s new poll shows that a solid 55-39 percent majority favors its repeal. Virtually every poll taken on the issue in the last two years has gotten more or less the same result. This means that if the court does strike the law down, it will not only be restoring a sense of limits to the power of the government to use the Commerce Clause to justify any conceivable expansion of federal power, it will also be following the will of the people.

After the disastrous performance of the solicitor general in defense of the law during the three fateful days of arguments, there has been a concerted effort by the left to overcome the impression that the personal mandate is doomed by appeals to the court’s history. But while it might have been argued that a court ruling that overturned the legislature’s decision would have been an overreach, doing so after that legislation had been the key issue in a midterm massacre of those who voted for it is certainly less so. As this Rasmussen poll, and all the others that got the same results illustrates, should the court strike down ObamaCare, there will be no national backlash against Roberts and his colleagues except in the editorial columns of liberal newspapers.



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