My friend and fellow Special Report panelist Juan Williams has a column titled “Defeat of healthcare law would erode voters’ trust in Supreme Court,” in which he argues, well, exactly that. He writes:
The relevant point is that the court may do irreparable harm to its reputation with another highly political split between justices appointed by Democrats and justices appointed by Republicans. A 5-4 defeat of the healthcare law will erode trust in the justice system.
It’s an odd argument coming from Williams given his fondness for citing polls to settle debates. He gives short shrift to the fact that the American people want Obamacare overturned in whole or in part. According to the latest CBS-NYT poll, 41 percent want to overturn the entire law, and 27 percent want to overturn the mandate, meaning that 68 percent want to see some part of the law go (The most recent Rasmussen polling says 53 percent favor repeal). A large share of Democrats are against the law in whole or in part, as well.
Now, I don’t think the Court should consider the polls when it makes decisions. And Williams is right that in terms of public confidence, ideally the court would come out with a unanimous or near unanimous decision. But if the issue is the Court’s reputation with voters, it’s hard for me to see how the public will view a 5–4 decision to uphold a law they don’t like as more legitimate than a 5–4 decision to strike down a law they don’t like. If the justices are going to be split, and if the reputation of the court is such a huge concern (overblown in my opinion), then siding with the voters strikes me the wiser course.
And yet, you only hear this complaint about the Supreme Court’s standing from people who want to keep Obamacare on the books. Curious.