WASHINGTON -- Two new polls show that when the U.S. Supreme Court hands down its much-anticipated ruling on President Barack Obama's signature health care law later this week, public reaction is likely to match views about the law itself: Divided, confused and unhappy.
Results from a new NBC News/Wall Street Journal poll released on Tuesday show that 37 percent of Americans say they will be pleased if the Supreme Court overturns the law, 22 percent say they will be disappointed, while about a third say they would have "mixed feelings."
The pollsters found a similar result when they asked a slightly different question. More than a third (35 percent) said they would be disappointed if the court upholds the law, while 28 percent said they would be pleased.
But either way, results will leave a majority of Americans less than pleased.
Another survey conducted earlier this month by the Pew Research Center found a very similar result. They asked three questions to probe reactions to different scenarios: That the Supreme Court would uphold the entire law, throw out the entire law, or just throw out the mandate that requires individuals to have health insurance. In each case, fewer than half (between 39 and 44 percent) said they would be happy, while far more (between 48 and 51 percent) said they would be unhappy.
Not surprisingly, according to the Pew Research report, these results tracked along partisan lines. "Most Democrats would be happy if the law is upheld," they write, "while most Republicans would be happy if it is thrown out." Meanwhile, the possibility that the Supreme Court will reject just the individual mandate "does not satisfy either side."
These views correlate to more general opinions of the health care law. As has been the case all along, relatively subtle differences in the wording and format of questions have produced a range of responses. Most polls show more opposition than support, but the levels of each have varied widely, along with the percentage of those who are undecided in their opinion.
Despite the considerable spread of the results, those opinions have been holding steady over time. When summarized into a combined trend line in the HuffPost Pollster health reform law chart (below), the various public polls show that the general sense of support or opposition to the law formed in the Spring of 2010 has largely persisted.
Another consistent finding is that a non-trivial portion of expressed opposition comes from more liberal Americans who say they are disappointed that the Affordable Care Act does not go far enough. The CNN/ORC polls conducted over the past two years, for example, have found that between 50 and 59 percent say they are generally opposed to the "bill that makes major changes to the country's health care system [that] became law in 2010." However, the same surveys also asked a follow-up question, showing that between 10 and 14 percent of all Americans oppose the health reform law because they think its approach "is not liberal enough."
Public confusion about the complex law has been another constant. For most of the last two years, for example, the Kaiser Family Foundation has found just less than half of Americans -- ranging between 42 and 55 percent, with no apparent trend -- say that the word "confused" describes their feelings about the health care law. In March, the survey found 39 percent of Americans saying they felt the public did not have enough information about the law to understand how it will affect them personally.
That sense of confusion stands alongside the absence of a perceived personal benefit. On the most recent Kaiser Family Foundation survey in May, for example, just 23 percent of Americans said they would be better off under the new reform law, while most of the rest thought the law would make them worse off (31 percent) or would make no difference (37 percent).
The combination of confusion and division, combined with the lack of a perceived benefit, help explain why, no matter what the Supreme Court does about health care reform law, most Americans will be unhappy about it.
Below, the history of the legal challenge to Obama's health care reform law:
U.S. District Judge George Caram Steeh, a Clinton appointee sitting in the Eastern District of Michigan, released the first major Affordable Care Act decision in October 2010. In Thomas More Law Center v. Obama, Steeh sided with the government to hold the law constitutional. "The decision whether to purchase insurance or to attempt to pay for health care out of pocket is plainly economic," Steeh wrote. "These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers and the insured population, who ultimately pay for the care provided to those without insurance."
At the end of November 2010, another Clinton appointee, Judge Norman Moon of the Western District of Virginia, agreed with Judge Steeh. In Liberty University v. Geithner, Moon wrote that "by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance."
In December 2010, however, Judge Henry Hudson, a George W. Bush appointee sitting in the Eastern District of Virginia, ruled otherwise. In Virginia v. Sebelius, Hudson struck down the individual mandate, writing that "an individual's personal decision to purchase -- or decline to purchase -- health insurance from a private provider is beyond the historical reach of the commerce clause." Importantly, Hudson also held that the individual mandate is severable from the rest of the Affordable Care Act, which means a court can strike it down while allowing the law's remaining provisions to stand.
Finally in January 2011, Judge Roger Vinson, a Reagan appointee in the Northern District of Florida, evened the score but upped the ante. In Florida v. Department of Health and Human Services, not only did he strike down the individual mandate as exceeding Congress' power under the commerce clause, but he also took the whole health care law down with it. "The act," Vinson wrote, "like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker."
In June 2011, the U.S. Court of Appeals for the 6th Circuit upheld, by a 2-1 vote, Judge Steeh's decision in Thomas More Law Center. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, was the first judge chosen by a Republican president to reject the commerce clause challenge, writing that "no one must 'pile inference upon inference' to recognize that the national regulation of a $2.5 trillion industry, much of it financed through" national health insurance companies, "is economic in nature." He joined Judge Boyce Martin, a Jimmy Carter appointee, in the majority, while Judge James L. Graham, a Reagan appointee, wrote a vigorous dissent. In August, the 11th Circuit, reviewing Florida v. HHS, produced a near mirror-image result. Judge Frank Hull, a Clinton appointee, joined the Reagan-appointed Judge Joel Dubina to affirm District Judge Vinson's decision to strike down the individual mandate. Judge Stanley Marcus, a Clinton appointee, dissented, quoting heavily from Sutton's 6th Circuit concurring opinion. All three 11th Circuit judges found the mandate severable from the rest of the Affordable Care Act, reversing District Judge Hudson's decision to deep-six the entire law. Both appeals courts unanimously rejected the government's taxing power argument, insisting that if Congress had thought the penalty for not buying insurance was a tax, it would have explicitly called it a tax. On this issue, a third appeals court created another circuit split.
In September 2011, the 4th Circuit dismissed two challenges to the health care law, finding that the plaintiffs did not have standing to bring their lawsuits. The panel did find that the penalty for not buying insurance was a tax -- a good sign for the government's defense of the law. But rather than hold that the individual mandate was a valid exercise of Congress' taxing power, Judges Diana Gribbon Motz, a Clinton appointee, and James Wynn, an Obama appointee, said that another federal law, the Anti-Injunction Act, prevented the plaintiffs from challenging the mandate until they actually had to pay the tax -- which cannot happen before the provision goes into effect in 2014. The third judge, Obama appointee Andre Davis, said he wouldn't have dismissed the lawsuits and would have upheld the individual mandate based primarily on commerce clause ground. Regardless of the methodology, the Obama administration was now winning 2-1 in the courts of appeals against the Affordable Care Act's challengers.
The Supreme Court is most likely to choose to hear a case for one of three reasons: The constitutionality of a federal law hangs in the balance, the circuit courts disagree on the same issue, or the solicitor general advises the Court to take the case. Cases that fulfill just one of these considerations stand a good chance of reaching the justices. The health care cases had all three. In November 2011, the justices agreed to review the 11th Circuit's decision. To signal how seriously it took the challenges, the Court soon thereafter scheduled six hours of oral argument to take place from March 26 to 28, 2012. Normally, even for blockbuster cases, the justices only allot one hour for oral argument.
All eyes turned to the Supreme Court in late March 2012 when the justices heard oral argument and gave their first public hints of where they stood on the Affordable Care Act's constitutionality. On the first day, March 26, liberal and conservative justices alike showed little interest in following the 4th Circuit's decision to throw out the challenge to the health care law on a technicality before ever reaching the constitutional merits of the individual mandate. That display of unity disappeared on Tuesday, March 27, as the Court took on the main event: two hours of argument over the mandate. The Court's four Democratic appointees all appeared to find the mandate well within Congress' powers to regulate interstate commerce, as the 6th Circuit had held; the Court's five Republican appointees, in concert with the 11th Circuit, seemed to think otherwise. Only in the final moments did swing vote Justice Anthony Kennedy soften his tone by musing aloud whether the health insurance market is different enough, after all, to allow a mandate to prevent cost-shifting where it might not be permissible in another market. "[M]ost questions in life are matters of degree," he said. On Wednesday, March 28, the justices considered what other parts of the Affordable Care Act would fall if they found the mandate unconstitutional. No majority emerged. Several justices agreed with the challengers that the whole law must fall. Several others agreed with the Obama administration that two key (and popular) provisions could not survive without the mandate. Still others indicated some sympathy for severing the mandate alone and allowing the rest of the law to stand. A decision is expected by the end of June.