The ACA, Citizens United, and Unfair Public Perception of the Supreme Court

I’m thrilled to be guest blogging for Concurring Opinions for July. By mid-month, I’ll post a draft of a recently completed article on quantifying probable cause, a topic inspired by my April guest blogging stint. In the meantime, I’d like to add my reaction to Thursday’s epic Supreme Court decision upholding the Affordable Care Act, with a focus on judicial legitimacy.

I am quite pleased with the commentary on the Supreme Court’s Affordable Care Act decision, from commentators on

the left and on the right. I am greatly disturbed, however, by the intractable cynicism about the Supreme Court that has gripped the public. The belief that Justices decide cases largely due to their own politics, I submit, actually enables Justices to do so, leading to a vicious cycle.

The attached poster, which has been circulated widely, urges voters to re-elect President Obama so that the Supreme Court can overturn Citizens United, which invalidated laws restricting the ability of corporations, nonprofits, and unions to engage in certain forms of political advocacy during elections. Whatever your opinion of Citizens United, reducing that case’s holding to a three-word declaration that “corporations are people” is simplistic and misleading. Citizens United refused to allow corporate expenditures on speech to be hampered based on the identity (or corporate status) of the speaker. Even Justice Stevens’ dissent acknowledged that corporations receive First Amendment protections in certain situations. The poster’s results-oriented, un-nuanced view of the case is irresponsible.

I could dismiss the poster as political pandering, but “corporations are people” seems to be what a significant portion of the public thinks that Citizens United decided. They also believe it was decided this way based on five Justices’ favoritism of corporations and antipathy towards campaign finance reform. I believe that the media is partially to blame for the public’s conflation of the results of a case with the political biases of the Justices. Articles discussing politically-charged Supreme Court cases often attribute the outcome of a case to the Justices as if the reasoning/procedural posture is secondary, and as if no Justice ever voted to invalidate a statute that he favored or uphold a statute that she abhorred. Just look at United States v. Alvarez, issued on the same day as the Affordable Care Act was deemed a tax. Surely six Justices are not in favor of individuals falsely claiming to be decorated soldiers, yet they invalidated a statute criminalizing such lies.

When the public believes that Justices vote based on their political views, people essentially give up on rule of law, and in turn encourage Justices who agree with their politics to do the same. When Justices are accountable to the results of a decision, instead of its reasoning, they worry more about the result than of the process of comparing a statute with a principled reading of the Constitution. The public’s cynicism about the Court has dangerous implications.

Of course, in close cases, a judge’s personal biases and approach unavoidably enter into the equation. But those personal biases generally exist on an abstract level – as in, the First Amendment should be interpreted broadly, or, the Fourteenth Amendment should be read textually, or even, the Constitution largely protects privacy rights, or property rights – and very rarely take the form of a crude results-oriented decision that any individual case should come out a certain way. I know this happens sometimes (certainly Bush v. Gore springs to mind). But, the more abstract a judge’s jurisprudential approach, even if that approach has been informed by her politics, the more likely she will rule in a way that contradicts her politics in specific cases, and the less she becomes a naked political actor.

After last week’s decision, I am left wondering how much public opinion should affect Supreme Court verdicts. On the one hand, incorporating public opinion prevents the Justices from straying too far from our country’s values. Landmark decisions like Brown v. Board and Lawrence v. Texas had to wait until some significant segment of the populace supported integration and gay rights, respectively. On the other hand, a major reason for judicial review is to protect the public from its own, democratically-enacted laws that, while seeming appropriate, trespass against greater values when viewed in the abstract. And certainly, the public’s anger at the Supreme Court over a result, instead of over fallacious or unprincipled reasoning, should not carry the day.

If Justice Roberts bowed to President Obama’s pressure and public opinion in upholding the ACA, as some commentators suggest, then the Chief Justice maintained some appearance of legitimacy for the Court at the expense of its actual legitimacy. True legitimacy requires deeper interactions between the Court and the public over what is animating Supreme Court decisions.

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20 Responses

  1. This post, however well meaning, runs up against a very important fact: ordinary citizens don’t care about judicial philosophies; they care about outcomes. They want to continue to enjoy the right to choose. They don’t want corporations buying elections. They want Congress to be able to improve the quality of their health care. Maybe lawyers console themselves when the Supreme Court rules against their political preferences by saying “well, the Justice was just following his judicial philosophy” — though I think the post significantly understates the impact of a Justice’s politics on his or her decisions. But non-lawyers never will, and I don’t understand why we should expect them to care more about the rule of law than about their own well being. Maybe that’s cynical; I just think it’s realistic.

  2. I second the above referenced post. While eggheaded law professors & such prattle on about judicial philosophy, if you’re a real person living in the real world you don’t much give a damn about abstract theories because that’s not what puts a roof over your head or food on your table.

  3. Howard Wasserman says:

    That poster does not suggest that justices are voting solely on their political preferences. It could be read as suggesting simply (and correctly, I imagine) that the justices President Obama will appoint have different judicial philosophies than those President Romney will appoint and that Obama’s appointees’ philosophies as to the First Amendment will be less likely to recognize the same level of protection for corporate speech. I could imagine posters doing the same with reproductive freedom or, from the other side, gun rights. The problem with the ad is that it completely mischaracterizes what Citizens United said or means.

    Kevin: I agree with your characterization of how ordinary citizens view things. But this poster comes from an advocacy group, which presumably is a bit better informed about what CU means. Could we hope/expect them to appeal to ordinary citizens with better information?

  4. Bruce Boyden says:

    Prattle On, by that logic, why have law at all? It’s all just abstract rules and doctrines that doesn’t put food on anyone’s table or a roof over someone’s house. Perhaps we should go back to trial by battle.

    Also, it is incorrect to describe me as an eggheaded law professor. As a condition of moving to Wisconsin, I was required to replace my egg head with one of more appropriate sustenance. I am now a CHEESE-headed law professor.

  5. Joe says:

    Reading and listening to legal commentary on the cases referenced, simplistic advocacy approaches on both sides came from some pointed head legal types too.

  6. Howard,

    I wouldn’t be surprised if they know better — but they are, after all, an advocacy group, and the first significant progressive one in quite some time. I agree with your reading of the ad, but I’m not sure its creators could be expected to package Citizens United any differently for mass consumption. To echo my comment, their constituents want elections untainted by corporate money; they don’t care whether Obama-appointed justices would be more likely to reverse Citizen United because of their judicial philosophies or because they are liberals.

  7. I think the poster’s major flaw is its compounding of a series of generalizations without much grounding in reality. Om the other hand, it might be a fairly accurate representation of one side of the Court’s nomination politics – namely the Democratic side. How can one look at the likes of Blackmun, Stevens, Powell, Kennedy, Oconnor, Souter and, now Roberts, and think that ANY Republican president has a prayer of appointing three predictably Republican nominees? And all in a row! What fantasy planet did this analysis come from? I think we are more likely to see a Democratic appointee vote for a restriction on abortion, or vote to overturn Miranda.

  8. Bryan Kreykes says:

    I agree with Prof. Boyden. The argument that “ordinary people” won’t take the time to understand the court (and other government functions) because doing so “doesn’t put food on [their] table” really gets at the root problem with democracy itself. Namely, the citizens of a democracy get the government they deserve. If “ordinary people” don’t understand and participate in their government, power will flow to those who do — allowing the rich, the politically connected, large corporations, and political interest groups to exert a huge amount of influence over elections and gain control over the legislative and executive branches.

    Such a scenario creates a vicious cycle — the people in government will have an incentive to represent the “elite” moneyed interests who put them there (the rich, corporations, interest groups) rather than the “ordinary people,” and will pass laws that skew the rules of the game to the advantage of the “elites.” Such laws will only further erode the faith of “ordinary people” in their government, resulting in further decreased participation and perpetuating the cycle.

    Getting people engaged in the political process is, admittedly, a very difficult problem. But if democracy is going to work, it is essential that citizens understand their government, and the Supreme Court isn’t a bad place to start.

  9. Bryan Kreykes says:

    Whoops! Meant “understand the court,” not “understanding.”

  10. Joe says:

    Over at Dorf on Law, they seem to be vegans, so eggs or cheeseheads need not apply. Soy-heads?

    I think the public bottom line tends to be more nuanced than some give them credit for, even if they sometimes use simplistic language. So, when pressed, they realize some sort of corporate money is okay, but they thinks CU goes too far. To the degree some are overly simplistic, online debates repeatedly show the possibility for education.

  11. Howard Wasserman says:

    Wow–one vote goes against the Republican-preferred position (and only after potentially limiting interpretations of both the Commerce and Spending Clauses) and suddenly John Roberts is David Souter.

  12. Erica Goldberg says:

    I appreciate the comments. I think this dichotomy between what law profs care about and what “ordinary citizens” care about may be overstated. It also underestimates the ability of “ordinary citizens” to understand how the legitimacy of the Court will impact their lives. If they live in a world where Justices can simply undo laws based on nothing but politics (as many feel about Citizens United), their well being will overall be decreased, as laws they vote for will be similarly vulnerable. Judicial philosophy would not merely be a consolation if that’s how we believe the judiciary works. I think the public could certainly care about this if the role of the Court were reported more responsibly.

    I do see that the distinction between judicial philosophy informed by politics and straight results-driven decisionmaking may not be so accessible, but it is very significant, and the ideal (though not completely attainable) is a more abstracted philosophy.

  13. Mike Zimmer says:

    Citizens United simply carried on the Court’s earlier decisions equating money with speech because money is needed in elections. Money is needed to buy what most of us need or want. I need money to buy potatos but does that equate money with potatos. All of the Court’s jurisprudence simply misunderstands what money is — a medium of exchange and not what is exchanged.

  14. anon says:

    There is a vast literature on the Court in political science that shows the Court is political–that is, policy driven. The Justices’ preferences, however, are constrained by a variety of factors, including sometimes (typically not in all constitutional cases) law. The problem is that the public confuses the death of legalism with the absence of constraints. This leads the public to view the Court as merely a battle ground for partisan (as opposed to policy) outcomes. The view is simplistic and misses the mark. But the general thrust–that things other than law drive the outcomes of many cases–is surely not too far off.

  15. A.J. Sutter says:

    Yes, the poster misstates the ostensible holding of Citizens United. But it doesn’t suggest that politics is the only thing the Court considers in every case. And it’s not wrong to suggest that Court appointments are a good reason to participate in the election. I imagine there are many disillusioned people who voted Democrat last time who are sorely tempted to sit this one out (like me). (Ahead of trying to explain the fallacious reasoning of of Citizens United more accurately in a poster, I’d prioritize posterizing that Presidents also appoint District and Circuit Court judges, so their impact is more profound than most voters realize.)

    Doesn’t the Court share some of the blame for public perceptions, or do you think Bush v. Gore was also a case of “protec[ing] the public” from its “democratically-enacted” vote? And do you really believe that Court decisions can be simply a matter of logical deduction, so that only “fallacious or unprincipled reasoning” is blameworthy? Or, since in fact the Court can’t avoid bringing values into a decision, do you mean that we should simply acquiesce to the values of a Court majority without a whimper?

    “When the public believes that Justices vote based on their political views, people essentially give up on rule of law, and in turn encourage Justices who agree with their politics to do the same”: Whose politics are the Justices agreeing with, exactly? And while it’s been 30 years since I took a Con law course, I recall we were given plenty of examples where the Justices really did vote based on their political (and self-preservational) views — during the New Deal, for example. So it’s not just “the public” but lawyers who may believe that politics is at least a factor. But aside from its ambiguity, the real problem with this statement is that you’re blaming “the public” for the behavior of the Justices, while earlier saying that we ought to allow ourselves to be “protected” by them. If that second prong of your argument is to hold up, then I think it’s reasonable to hold the Justices responsible for their own actions.

  16. Jordy Singer says:

    I respectfully disagree with both Kevin and Howard. Ordinary citizens’ assessment of the Court is not driven primarily by case outcomes, but by perceptions of the Court’s neutrality and trustworthiness. Tom Tyler pointed this out with respect to abortion nearly 20 years ago, and I recently reached the same findings with respect to same-sex marriage in Iowa. The Chief Justice certainly understood that in Sebelius: the language of his opinion repeatedly emphasizes judicial humility and the need for careful, neutral analysis. Whatever the motivations behind his decision, he cast his opinion to appear as apolitical as possible, thereby protecting the legitimacy of the Court as a whole. My guess is that his effort will be successful.

    Notwithstanding the recent (pre-Sebelius) poll showing a drop in public support for the Supreme Court, I continue to believe that attacks on the Court for the Citizens United decision (whether by the Occupy movement, Congressional candidates, or the President himself) will ultimately harm the attackers far more than the Court. There is a deep reservoir of diffuse support for the Supreme Court. As long as the Court explains its decisions transparently and couches the decisions in the language of neutrality, the public is likely to accept those decisions and instead question the motivations of the Court’s attackers.

    Again, this is not to say that the decisions of individual Justices are not motivated by politics, ideology, or philosophy. And I think citizens understand this. But the public is looking for the Court to demonstrate that its decisions rest on more than raw political calculus, and this the Court usually does.

  17. Logan says:

    The poster presented doesn’t say anything about the Justices making decisions based on their political beliefs. What it does say is that politicians (i.e. Obama and Romney) are political opportunists and will nominate individuals that are more in line with their (the politicians) belief systems.

    Additionally, we might be able to critique the poster as overly simplifying CU but it’s a freaking poster. Assuming this is put out by a political organization we can’t exactly expect a nuanced analysis of the Court’s findings. Further, one of the major rules in marketing is to keep it short, very short, with an attention grabbing headline. So even if the poster were to have been made by ConcurringOpinions, you wouldn’t exactly have been able to fit a legal brief on it and in a manner that would make it easily consumable by the general public as they pass by.

    Lastly, judicial philosophies are intertwined with our political philosophies. Both are based on our socialization in society and framed by our interactions. Judicial philosophies, however, are simply our political philosophies being used to interpret our written laws. Thus, it should be no surprise that SCOTUS has always found itself under the occasional attack for its decisions.

  18. A.J. Sutter says:

    @Jordy#15: Apropos of “diffuse support,” do you really believe that members of the public who are happy about the ACA decision won’t distinguish between the four Justices who voted for the ACA and against Citizens United, on the one hand, and the four who voted exactly the opposite way? That they’ll think it’s all one, big, happy Court? And that those who aren’t members of the plutocracy but who are unhappy about the ACA decision are going to think SCOTUS is great because Citizens United is being attacked by some people? I’m skeptical attacks on Citizens United will backfire, though I concede they might not have any successful result. Those who are allowed to spend more as a result of the decision already have plenty of incentive to spend more, whether the decision is attacked or not. I don’t see how continued complaints about the decision (absent their turning ad hominem, violent, etc.) will make things worse than they already are.

  19. Jordy Singer says:

    A.J., I certainly don’t believe that anyone thinks the Supreme Court is a happy family, or that it is not a political actor. But diffuse support is not about outcomes or the need to reconcile them; it’s about general support for the Court as an institution. That support stems from the belief that the Court is reaching its decisions (whatever they may be) in a trustworthy and procedurally fair way. Diffuse support allows citizens to believe in the Court as an institution even as they disagree with specific case outcomes.

    For example, those members of the public who follow the Court at all (and of course, there are many who don’t know or care about the Court’s workings) are probably aware that the Sebelius and Citizens United decisions came after oral argument at which both sides were presented with an equal opportunity to advance their positions, and that the Court’s decision was cast in a written opinion. Most people will never read these opinions, but merely knowing that the Court has to justify its decisions in writing for all to see may have been enough to promote acceptance of the rulings. In other words, some significant percentage of those who disagree with those decisions will nevertheless accept them as legitimate because they carry the major trappings of having been determined through a fair process. (By contrast, even supporters of either decision would probably have trouble accepting its legitimacy if the Court had decided it without any oral argument or written opinion, because the procedural safeguards of participation, transparency, and neutrality would be all but missing.)

    For this reason, attacks on the Court for Citizens United seem bound to fail. Now attacks on the decision itself might be successful, because there is a strong feeling in the country that campaign finance reform must be implemented. But efforts to attack the Court specifically – even now, the most respected branch of the government by a significant margin – strike me as ill-advised as a political maneuver.

  20. A.J. Sutter says:

    Thanks for your explanation, though if even a lawyer like me can miss your subtle distinction between “attacks on the Court for Citizens United” and “attacks on the decision itself,” I doubt that most members of the public who are aware of the Court’s recent decisions are going fuss over splitting that hair, either. Efforts to attack the Court generally: yes, probably not so persuasive. Efforts, like the depicted poster’s, to galvanize voters to effect a change in the Court’s make-up (as in the poster): eminently justifiable.