Though his "court packing" plan went awry, the court (and particularly Justice Owen Roberts) did swing behind the popular president, protecting both themselves and the New Deal -- "the switch in time that saved nine," as the saying went.
Ever since, it has been widely assumed that the Supreme Court keeps a close eye on public opinion. Indeed, among the papers of the late Justice Harry Blackmun, historians found that the late Chief Justice William Rehnquist and other justices had an office pool going for the 1992 presidential election, betting $1 on each state. (Sandra Day O'Connor apparently won.)
And so it is that as the current Supreme Court prepares its momentous decision expected this month on the Affordable Care Act -- widely known as Obamacare -- experts wonder how much public opinion will sway the court's ruling. Except that in this case, the court will be in a no-win position if it plays to the bleachers. That's why the real question is: On what basis should the court truly act? And on what basis should the media, politicians and the country then react?
Court finds itself in a bind
Consider the quandary the high court faces in trying to keep the public on its side.
Last week, a New York Times/CBS poll revealed that a majority of respondents -- 68% -- believes the individual mandate to buy health insurance, the central feature of the law, violates the Constitution and wants the court to overturn the law in part or in whole. Even a plurality of Democrats (48%) want a partial or full overturn. So if the court decides to uphold the law, it will sharply contravene current public opinion.
But what if the court indeed decides to strike down the mandate and possibly other parts of the law? In the near term, yes, that could be widely welcomed by the public. But over time it could stir up a different fire, one that could do further damage to the reputation and prestige of the court.
Despite its occasional waywardness, the Supreme Court has traditionally been viewed as the least partisan and most independent of the three branches of government. That in turn has built a reservoir of public trust so that, in controversial cases, most Americans believe that the justices have worn a blindfold, carefully weighing the law of the land. Thus they respect the law, an important source of legitimacy for our only nonelected branch of government.
To encourage this judicial independence, we give our justices lifetime appointments: we are meant to be, in John Adams' famous phrase, a "government of laws and not men." Chief Justice Roberts gave voice to this tradition in his 2005 Senate confirmation hearings when he compared the position of justice to that of a baseball umpire: a critical role, he noted, but "umpires don't make the rules; they apply them."
An erosion of public trust
Recently, however, the court has suffered an erosion of public trust stemming from a series of controversial decisions that seem to reflect a growing politicization of the the judicial branch -- conservatives on one side, liberals on the other. The New York Times/CBS poll last week found that confidence in the court has dropped from 66% in the late 1980s to 44% today. A recent Washington Post/ABC News poll showed that by a margin of 50% to 40%, Americans believe the Obamacare case will be decided more on the "basis of their partisan political views" than on "the basis of the law."
The Affordable Care case will be especially vulnerable to such attacks from the mainstream media and politicians if the court overturns the law by a 5-4 majority, as many now expect.
As David Paul Kuhn noted for RealClearPolitics in 2010, the Supreme Court up until World War II decided only a tiny fraction of cases -- 4% or less --- on a 5-4 basis. The average for the Roberts court, according to the most recent data available, is 21%. That is an unfortunate trend.
But a 5-4 ruling against Obamacare would have a special feature that would make it seemingly unprecedented. It would be the first instance we can find in which a one-vote majority of justices appointed all by one party have overturned a landmark piece of legislation advanced by the opposing party, with all four opposing votes having been appointed by the opposing party.
In short, if the court overturns the law by 5-4, critics will immediately charge that the razor-thin ruling would represent a party-line vote rather than reasoned judgment and debate from the highest court in the land.
Some may allege that the court, with its ideological division and legislative veto power, has in effect become just an even-more rarified (and nonelected) version of the Senate.
Decisions crossed party lines
Take, for example, recent decisions such as Citizens United in 2010 or Lawrence v. Texas, the 2003 ruling that struck down sodomy laws in Texas.
These rulings have enraged some members of both parties (and pleased their opponents), but they came with the mitigating virtue that at least appointees from the opposition had crossed lines to stand on principle.