A story published Friday by Bloomberg News surveyed constitutionallaw experts around the country and found that the overwhelming majorityof respondents believe the Supreme Court has no proper grounds on whichto strike down the mandate portion of the Affordable Care Act. Notmentioned in the Bloomberg story is the fact that nearly half of therespondents have made campaign donations to President Obama.
The fate of the President’s signature achievement, the AffordableCare Act, will beannounced this week by the Supreme Court. That decision is widely seenas playing a rolein the President’s reelection chances this fall. In advance of theruling, Bloomberg News emailed surveys to 131 professors at 12 lawschools. An overwhelming majority of respondents, 19 of 21, believed theindividual mandate should be upheld based on legal precedent, but only 8of 21 believed that would happen. The obvious conclusion? Politics wasaffecting the Supreme Court:
There was broad agreement that the ruling, barely fourmonths before November’s presidential election, has thepotential to hurt the Supreme Court’s reputation as an impartialinstitution.
Eighteen of the 21 professors said the court’s credibilitywill be damaged if the insurance requirement — which passedCongress without a single Republican vote — is ruledunconstitutional by a 5-4 majority of justices appointed byRepublican presidents.
The Bloomberg News piece has been widely circulated, especially on theleft, where blogs have pointed to it as proof that the Affordable CareAct would survive if not for the influence of politics. Sites like DailyKos and Balloon Juice were joined by James Fallows of The Atlantic who cited the Bloomberg piece to support his contention that the U.S. was undergoing a “coup.”
But a closer look at the Bloomberg survey reveals a serious problem.Of the 131 law professors contacted, only 21 chose to respond, about 16percent. Digging into the public donations records for the individualswho responded reveals a fairly clear case of self-selection bias.
|Name||School||Donation to Obama|
|Bruce Ackerman||Yale||$1250 in 2008
Also DCCC and DSCC in 2010
|Norman Dorsen||NYU||$4850 this election cycle|
|JamRep. Al Green (D-TX)e||Columbia|
|Dennis Hutchinson||U of Chicago||$250 in 2008|
|Michael Klarman||Harvard||$1500 this election cycle|
|Gillian Metzger||Columbia||$300 this election cycle|
|Anne Joseph O’Connell||Berkeley|
|John D. Ohlendorf||Northwestern|
|David Richards||NYU||$4,875 this election cycle
Also DNC in 2010 and 2011
|Kermit Roosevelt||U of Penn||$500 this election cycle|
|Adam Samaha||U of Chicago|
|Neil Siegel||Duke||$1000 in 2008|
|Laurence Tribe||Harvard||$3500 this election cycle|
|G. Edward White||U of Virginia|
|Christina B. Whitman||U of Michigan||
Nine of the 21 respondents, 43 percent, have donated to the Obamacampaign. But even those who haven’t donated to a particular party haveidentifiable political views. For instance, Professor Anne Joseph O’Connell has offered advice to the Obama administration in the form of this Center for American Progress report. For those not familiar with it, CAP is a progressive think tank known of its close ties to the White House and for funding the progressive blog Think Progress. Professor Richard Parker is one of the founders of Mother Jones magazine and describes himself as a progressive.
It should go without saying that we can’t assume a particularpartisan identification affects an individual’s legal judgment in agiven case. Then again, this is precisely the assumption theseprofessors seem to be making with regard to the Supreme Court’sconservative Justices and the ACA. A look at the chart above may suggest a reasonfor their jaundiced views. Bloomberg News should have mentioned these connections to better inform readers that the opinions were not those of disinterested observers. Ironically, these professors may have madethe case that interpretation of the law is too often colored by politics, just not in the way they intended.