Many political scientists believe, following Mr. Dooley, that the Supreme Court is impacted by election results and public opinion.* For example, Roy Fleming and Dan Wood find in an American Journal of Political Science piece “that public opinion directly affects decisions by individual members of the Court.” Moreover, they “show that the result holds across various issue areas, is not restricted to only a few justices, and that the justices’ responses are relatively quick with a lag of only one term.”** Likewise, Kevin McGuire and James Stimson in the Journal of Politics show that “public opinion is a powerful influence on the decisions of the Supreme Court.”
Of course, the extent to which such external influences matter is vigorously debated and these findings only represent half of the debate. Nonetheless, it does make me wonder whether a Romney victory in the Republican nomination contest will send some signal to the Supreme Court that they will take into account when they determine the constitutionality of ObamaCare. In particular, will Justices Kennedy, Roberts, and Alito - all of whom may be less motivated by personal preferences and jurisprudential arguments than their peers – be more open to voting in favor of ObamaCare given the signal that a Romney victory sends about the salience of the issue among even its putative detractors in the Republican primary voting pool? Consistent with the literature cited above, a Romney victory may give these justices some sense that a positive vote will not impair the Court’s standing in the public since Romney himself did not suffer extensively from his support for a similar plan at the state level.
A Romney nomination could be an important signal in this way since a potential marginal Court member may be concerned about supporting ObamaCare in the face of a pretty solid majority opposed to that legislation (again, assuming that public opinion influences how justices think and behave). Seems like yet another possible reason for Republican voters to vote for an alternative to Romney (and to a lesser extent, Gingrich, who supported RomneyCare until very recently).
* In an amusing piece that can be accessed here, a group of political scientists show that Supreme Court justices have also bet on election results! BTW, note the not so subtle political bias of the writers. I wonder if such banter from conservatives would so easily slide through the review process of even this relatively less serious academic journal.
** Roy B. Flemming and B. Dan Wood. “The Public and the Supreme Court: Individual Justice Responsiveness to American Policy Moods.” American Journal of Political Science Vol. 41, No. 2 (Apr., 1997), pp. 468-498.
*** Kevin T. McGuire and James A. Stimson. “The Least Dangerous Branch Revisited: New Evidence on Supreme Court Responsiveness to Public Preferences” The Journal of Politics , Vol. 66, No. 4 (Nov., 2004), pp. 1018-1035.