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Popularity doesn't sway the Supreme Court

Supporters and opponents of the 2010 federal healthcare overhaul have been engaged in a furious war of words in recent weeks over whether the law could stand without the individual mandate. But the apparent attempt to influence the thinking of the U.S. Supreme Court justices appears to be based on a flimsy premise.

Underlying the root of the arguments over whether the law could or should stand without the individual mandate is the broadly acknowledged reality that the mandate is both extremely unpopular by itself and also the least popular of the law's many provisions.

That unpopularity—as well as the hostile questioning justices directed at the mandate during oral arguments—has led supporters to move from detailing the need for the mandate to arguing the law can stand without the requirement to have insurance.

But are the justices any more likely to strike the mandate because it is unpopular?

The popularity connection was most recently called into question by Monday's decision by the court to throw out most of an Arizona immigration law—and to lay the groundwork for a future constitutional challenge to its one remaining provision—despite the broad popularity of that law. For instance, a recent Pew Research Center poll echoed many others when it reported 58% of Americans supported Arizona's law, and only 38% opposed it.

In another example, most studies have found Americans broadly support campaign finance laws. For instance, a January Rasmussen poll found 58% of Americans said the nation needed new campaign finance laws. Such overwhelming public sentiment didn't stop the court from reaffirming—also this week—its 2010 Citizens United decision striking down a major campaign finance law.

So, the latest evidence suggests that whatever the court decides tomorrow it will have little to do with popular opinion.

Follow Rich Daly on Twitter @MHRDaly.

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