On Thursday, the Supreme Court will pass judgment on President Obama’s health-care law.
But the law, with its requirement that individuals buy health insurance or pay a fine, is not the only thing on trial. The court itself stands before the bar of public opinion, weighing in on a highly partisan issue with what polls show is a decline in the traditional perception that it is above politics.
Earlier this month, a New York Times/CBS News poll found that just 44 percent of Americans approved of the job the high court is doing, and three quarters said that the justices’ personal political views sometimes influence how they rule on cases.
And a survey by the Pew Research Center for the People & the Press, conducted in April, found that public esteem for the Supreme Court had reached a 25-year low. The poll found that 52 percent of Americans had a favorable view of the court, down from the previous low point of 57 percent, reached in 2005, after a bruising battle over Senate filibusters of judicial nominations, and 2007.
In part, that could be because of an increase in the mistrust Americans have for major societal institutions, particularly government. Some scholars, however, say that there is a sense the court is more political than before, citing 5-4 decisions along ideological lines such as Bush v. Gore, which decided the winner of the 2000 presidential election, and the 2010 ruling in Citizens United, which opened the way for unlimited corporate and union spending in elections.
The justices, while they certainly do not take polls before making their decisions, are no doubt aware of their public standing. After all, Chief Justice John Roberts told The New Republic in a 2006 interview, at the end of his first court term, that the “credibility and legitimacy” of the Supreme Court was threatened by a steady output of ideologically charged 5-4 decisions on controversial issues.
“In the end I think they pull a King Solomon on health care,” splitting the difference on the law, said Daniel F. McElhatton, a Philadelphia-based Democratic strategist. “The damage to the legitimacy of the court if they totally overturn is too much even for the most conservative of the bunch.”
That is one potential outcome – for instance, striking down the individual mandate but letting other provisions of the law remain standing – but so is upholding the statute on the basis of the strict-constructionist principle of deference to Congress.
Stay tuned. The decision should be announced around 10 a.m. Thursday.