By Andrea Campbell and Nathaniel Persily
The Supreme Court’s decision in National Federation of Independent Business v. Sebelius achieved a level of media coverage and public salience reached by very few Supreme Court decisions. It represented a political moment, if not a constitutional one. Although legal scholars might focus on the doctrinal importance of the decision for shaping the contours of congressional power, this unusually high profile case is also fascinating to study as an event that structured public opinion about the Affordable Care Act (ACA) and the Court itself. As such, it also presented a unique test for larger theories about the role of the Supreme Court as an agenda-setter for public opinion.
Perhaps more than any case in the post-New Deal period, the Health Care case evolved into a judicial referendum on a President and his signature legislative achievement. Leading up to the decision, media coverage resembled that of a sporting event or a campaign. It became clear that the case would end with a reported “win” or “loss” for the President. Coming, as it did, five months before the President would stand for reelection, the decision also threatened to frame the presidential race in unprecedented ways.
Our research examines the effect of the Court’s decision on public approval of the Court and the ACA.
The data suggest that the Court’s decision had a small but noticeable impact on attitudes toward the Court and the ACA. Although the Court found itself with historically low approval ratings before the decision, it dropped further soon after the opinion’s release. Moreover, the structure of opinion toward the Court became more polarized along partisan lines following the decision. Given the partisan split in opinion over the ACA, perhaps this should come as little surprise.
The Court gave a win to the President, so Court approval and presidential approval became more aligned following the decision. Less obvious, however, might be the effect of the decision on attitudes toward the ACA. The Court’s perceived stamp of approval for the ACA led some Americans to switch their minds about it, leading to a small increase in approval of the law following the decision. Some of this opinion transformation might simply have come from the favorable media attention heaped on the law as a “winner” at the Court. In other words, the Court’s upholding of the law sent a signal that it was objectively good policy.
For still others, the decision provided an opportunity for elite discussion and persuasion, instituted in particular by the President, who either convinced them on the law’s merits or triggered their latent approval for him by expressing newfound support for the law. In other words, precisely because the decision clearly defined the political stakes and discussion surrounding it became more politically polarized, support for the Act (which had lagged presidential approval) now became more closely correlated with it.
Andrea Campbell and Nathaniel Persily are the authors of “The Health Care Case in the Public Mind: How the Supreme Court Shapes Opinion About Itself and the Laws It Considers” which appears in the upcoming The Health Care Case (May 2013). It’s an all encompassing, ideologically diverse edited volume on the case featuring the nation’s leading lights in constitutional law.
Andrea Campbell is a professor of political science at MIT. Her interests include American politics, political behavior, public opinion, and political inequality, particularly their intersection with social welfare policy, health policy, and tax policy. She is the author of How Policies Make Citizens: Senior Citizen Activism and the American Welfare State (Princeton, 2003) and, with Kimberly J. Morgan, The Delegated Welfare State: Medicare, Markets, and the Governance of Social Provision (Oxford, 2011). She recently wrote an op-ed for the New York Times.
Nathaniel Persily is the Charles Keller Beekman Professor of Law and Professor of Political Science and the Director of the Center for Law and Politics at Columbia Law School. Professor Persily’s scholarship focuses on American election law or what is sometimes called the “law of democracy,” which addresses issues such as voting rights, political parties, campaign finance, and redistricting. he is a frequent commentator on the Supreme Court.
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