WaPo skews presentation of a poll on the Obamacare case to bolster the argument that the Court should defer to Congress.

"Do you think the Supreme Court justices will rule on this case mainly on the basis of law or mainly on the basis of their partisan political views?" That's a question on a new WaPo/ABC poll that comes right after a question about what people want to see happen.

Only 25% of Americans — random Americans, not likely voters — want the law upheld in its entirety. 67% want it stricken down in whole (38%) or in part (29%). But the WaPo article on the poll is headlined: "More Americans expect Supreme Court’s health-care decision to be political." On the is-it-law-or-politics question, 50% think the Court will go mostly on partisan politics, and only 40% think the Court will do what it purports to do and decide the case based on the law (or even mainly based on the law).

Do you see what WaPo is doing there? Highlighting the answer to the is-it-mostly-political question serves the agenda of those who want the law upheld. These people side with President Obama, who argues, conspicuously, that if the Supreme Court strikes down the law, it will be behaving in an inappropriately political manner. By stressing the poll respondents' mistrust of the Court's neutrality, the WaPo gives the impression that they agree with people who think the Court should stand down and let the work of the democratically elected Congress prevail. After all, if the Court doesn't have a firm legal ground for an exercise of power, it makes no sense for it to trump Congress.

Now, those who want the law upheld are massively outnumbered. According to this poll, there are 2.7 times as many people who want the Court to strike the law down. But if what the Court is really doing is partisan politics, this much larger group doesn't matter. It's as if these people would like a second trip through Congress. But Congress voted, the President signed the law, and that's that, politically. In that view, the 67% don't count.

But let's examine that poll question again: "Do you think the Supreme Court justices will rule on this case mainly on the basis of law or mainly on the basis of their partisan political views?" Consider the missing detail.  I would like to see the answer to these questions: If the Supreme Court strikes down the health care law — in whole or in part — do you think that will be a decision based primarily on constitutional law or a decision based primarily on the Justices' political opinions? If the Supreme Court upholds the health care law, do you think that will be a decision based primarily on constitutional law or a decision based primarily on the Justices' political opinions?

Since we don't know what the respondents think the Court is going to do, we can't tell which Justices are being accused of behaving politically. What portion of the 50% who say it's mainly political think all 9 Justices, whichever side they take, will be mainly political? As they calculate, on the fly, what the Court "mainly" does, they could be thinking: Well, Scalia/Kagan is about 90% political, and Thomas/Sotomayor is about 30% political... etc. etc.... that seems to add up to I'd say probably, overall, 50+% political....

You see the problem! It's quite possible that many respondents were thinking of the Justices they don't like, fearing those are the ones who'll have the majority, and accusing them of deciding politically. Do the respondents have an opinion on the legal question itself? The pollsters could have asked: Do you think, purely as a matter of constitutional law, that the statute is constitutional or unconstitutional? Then: If the Supreme Court decides the case that way, do you think it will be a decision based mainly on law?

Instead, we get a crude question, with all these details hidden. On the poll results page, the first link above, we see "Questions 14 to 18 held of [sic] future release." Questions 12 and 13 are the 2 questions I've discussed here. So there is more detail, and it is now being withheld. The article, the second link above, does reveal something of what kinds of additional questions were asked:

Almost twice as many conservative Republicans think the court will decide on the basis of the law rather than politics, 58 to 33 percent. Liberal Democrats are more skeptical, saying by an equally wide margin that the court will put politics first.

That's not quite what I want to know. Perhaps there's more. I'll be interested to see when and how WaPo dribbles it out.

By the way, the photograph under the headline shows a woman holding up a sign that says "Obamacare Is Immoral," tipping the reader to think that the threatened political decision is the decision that strikes down the law. Since this, I think, is something WaPo does not want to see happen, there's a message to the Court: If you strike down the law, it will be seen as mere politics.