Jeffery Rosen's complicated idea about why the Supreme Court really should uphold Obamacare.

Generally, I'm tired of these MSM articles that seem to be trying to push the Court to uphold the Affordable Care Act — as if the Justices are reading these articles and vulnerable to efforts — by writers who obviously politically support the law — to scare them into thinking people will lose respect for the Court. I say "seem to be" because I think these articles are really about shaping public opinion. They're not telling the Justices that people will disrespect them. They are stoking the people's disrespect in advance of an opinion that strikes down the law (in case that's what happens), and they are laying the groundwork for arguments about why Obama should be reelected (and Democrats need to keep control of the Senate).

But I'm going to link to this new Jeffrey Rosen piece in The New Republic. Why? It's just so amusingly complicated. I'll paraphrase the points he makes, in order:



1. A new poll (which we talked about on the blog here) shows declining approval for the Supreme Court and a belief that the Justices are sometimes influenced by their personal/political beliefs.

2. Some people — including Chief Justice John Roberts — think that public opinion is affected by all the 5-4 decisions that reveal that there is a set of conservative Justices and a set of liberal Justices.

3. There's a new study (by Nathaniel Persily and Stephen Ansolabehere) that says people decide whether they approve of the Court based on whether they like the outcomes of the cases, which suggests that an effective way for the Court to get respect would be simply to provide the outcomes people want.

4. A survey shows that people do like the outcomes of most of the big Roberts Court cases, and that's out of line with the declining approval of the Court, but it might be that people are giving extra weight to some of the big cases, the ones they don't like — maybe Kelo (for Republicans) and Bush v. Gore (for Democrats).

5. Maybe people support or reject the Court based on whether they are conservative/liberal and whether they believe that the Court is what they are — conservative/liberal.

6. A lot of people don't know which Justices were appointed by Republican Presidents and which were appointed by Democratic Presidents. (Rosen assumes the conservative/liberal split among Justices tracks whether they were appointed by Democrats/Republicans, which happens to be true of the current Court, though it was untrue before the Obama appointments were made.) But a study found that in the set of people who know that Republican Presidents have appointed a majority of the Justices, Republicans tend to support the Court, and Democrats are less supportive.

7. Even though a large majority of Americans say they want to see the health care law stricken down, and despite the Persily/Ansolabehere finding that people like the Court when they like the outcome, it's a mistake to think that the Court's approval rating will climb if it strikes down the law by a 5-4 vote. This is because, over time, 5-4 decisions remind people that the Court has a partisan split, and while this will make Republicans like the Court more, Democrats will like it less. Rosen doesn't specify this point, but it needs to be understood here: Only 24% of Americans surveyed by the NYT/CBS want the Court to uphold the law, so it would seem that many, perhaps even a majority of Democrats will approve of the outcome. But Rosen is saying that somehow it will still hurt the Court's approval among Democrats because they will see the Court as partisan and conservative — especially with "elites, including the President" pestering them to think about the Court that way. 

8. Rosen concedes that even if everything in point #7 is right, the Court might move up in the approval rankings because of the increased approval coming from Republicans who like the Court for being so partisan and conservative.

9. John Roberts should eschew that method of moving up in the approval ratings, because he'd be a better leader if he avoided the appearance of partisanship.

ADDED: Here's my analysis:

1. Rosen had material that added up to the conclusion that the Court would improve its stature among Americans if it struck down the health care law.

2. Rosen doesn't want the Court to strike down the health care law.

3. Rosen wrote some complicated paragraphs and then declared that he'd shown why the Court shouldn't strike down the health care law.