WASHINGTON — In June, the Supreme Court pulled off a neat trick. By upholding President Obama’s health care law, it simultaneously bolstered public support for the law and hurt its own reputation.
That puts the health care case, a new study concluded, “in a public opinion class by itself among Supreme Court opinions.” The complicated reaction to the most important case of the last term may weigh on the justices, who started a new term on Monday.
Andrea Campbell, a political scientist at the Massachusetts Institute of Technology and an author of the study, said the aftermath of the health care decision surprised her.
“It does seem unprecedented that the court would uphold a law and increase support for it,” she said, “and still experience a hit to its own approval and standing at the same time.”
It is unusual enough for the Supreme Court to influence public opinion in the first place, partly because people generally pay very little attention to its work.
When the court does have an impact, it is typically limited to setting the agenda, to thrusting previously ignored issues to the forefront of public discussion. In a new book called “From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage,” Michael J. Klarman, a Harvard law professor, gave some examples.
“Americans were not preoccupied with flag burning until the Supreme Court issued two controversial rulings on the subject in 1989 and 1990,” he wrote. “Within six months of a 1990 Supreme Court decision involving the right to die, half a million Americans drafted living wills.”
Along these same lines, you will be hearing more about affirmative action in the coming months, thanks largely to a new case challenging race-conscious admissions at the University of Texas. But that does not mean the eventual ruling will change anyone’s mind about whether it is a good idea.
When a court decision does have an effect, it is often negative, at least in the short term. That was, by many accounts, what happened after Brown v. Board of Education, the 1954 decision that called for desegregation of public schools, and Roe v. Wade, the 1973 decision that recognized a constitutional right to abortion.
“Both produced dramatic political backlashes,” wrote Professor Klarman, “even though opinion polls showed that half the country supported those rulings when they were decided.”
The health care decision seems to tack in the other direction, said Barry Friedman, a law professor at New York University.
“Earlier studies have tended to find that the Supreme Court does not bring people along with its decision by giving its imprimatur,” he said. “The more common reaction is backlash.”
The Supreme Court’s approval ratings are not terrible, but they tested historic lows shortly after the health care decision. They had dropped along with those of the government generally, but they remained much higher than those of Congress, the news media, big business and labor. The military, the police and religious institutions enjoyed more respect.
The Supreme Court is sometimes said to follow public opinion or at least not get too far out ahead of it. The decision in the health care case is not good evidence of this, as at least the central part of the law was quite unpopular.
It may be, though, that the court cares more about the circles in which most of the justices travel, a point argued by Lawrence Baum and Neal Devins in a Georgetown Law Journal piece, “Why the Supreme Court Cares About Elites, Not the American People.” Support for the health care law, as it happened, was much higher among people with college degrees than those without.
The new study, from Professor Campbell and Nathaniel Persily, who teaches law and political science at Columbia, will be published next year as part of a book from Oxford University Press. It argues that the response to the health care decision may have had something to do with the nature of the court’s action.
In the few cases that command the public’s attention, Professor Campbell said, the court often strikes down the law under review. Here, the court stepped back and deferred to Congress and the president.
Perhaps inevitably, given the current political climate and how closely the health care law was associated with Mr. Obama, that decision gave rise to distinctly polarized reactions about the court. More than half of Republicans expressed disapproval of its work shortly after the decision, compared with just over a third shortly before. Disapproval among independents rose to 43 percent from 32 percent. Only among Democrats did disapproval hold fairly steady, at about a third.
“The case may exist,” the study concluded, “as the most polarizing instance of judicial restraint on record.”