Hope for the best and prepare for the worst. That sums up the mood as the political campaigns brace for what could be a game changer when the Supreme Court announces its ruling on the constitutionality of Obamacare.
The ruling on the president’s signature achievement, his health-care law, is expected any day now, and according to the latest Pew Research Center poll, much of the public is unlikely to be satisfied, whatever the court decides.
Most Democrats want to see the law upheld, while most Republicans want it overturned. Another widely anticipated possibility would be the justices striking down the mandate requiring individuals to have health insurance while keeping the rest of the law in place. That outcome gets mixed reviews from advocates and opponents alike, with more than half of Democrats (56 percent) unhappy with that possibility, while Republicans are split, with 43 percent liking such a decision, and 47 percent dissatisfied.
The reaction among independents, who will likely decide the presidential election, is even murkier. Half say they would be happy if the entire law were overturned, while only 35 percent would like to see the entire law upheld. As for the mandate, 44 percent would like to see it tossed out; 49 percent would be unhappy to see it go.
Judging from these numbers, whether the political advantage goes to Obama or Mitt Romney may have less to do with the actual court decision than on whichever campaign musters the savviest response. And liberals are war-gaming the situation.
“All eyes will be on the White House minutes after the opinion is announced, says Nan Aron, founder and president of the progressive Alliance for Justice, so Obama “will have to say something. If the court strikes down the legislation, will the president run against the court in the same way Romney will if it is upheld?”
Obama is likely to tread gingerly in any criticism of the high court, praising whatever parts of the law are left standing and urging Congress and the insurance companies to fill the breach. Ron Pollack, executive director of Families USA, has crafted seven different statements in anticipation of the different permutations of what the justices might do.
“If you force me, I’d come up with more and I’m really not joking,” he told The Daily Beast. In no particular order, they are: The court allows the law to stand; it strikes the mandate; it strikes the mandate and insurance market reforms; it strikes down the entire act; it strikes the Medicaid expansion (which requires the states to expand coverage); it strikes the Medicaid expansion and the mandate; it strikes the Medicare expansion, the mandate, and the insurance market reforms.
Most of the media speculation has focused on the mandate as most vulnerable. Pollack calls it “a tool of the act, not the heart of the act,” and believes that losing the mandate would not be a death blow. As long as the court stops short of tossing out the entire law, there is still plenty to work with, he says. The problem would be preventing people from buying insurance only after they get sick, if preexisting conditions cannot be used against them.
If the court upholds the Affordable Care Act, that would vindicate Obama and provide a boost to his campaign, but would also give Romney “a big juicy target,” says Aron. Romney presumably would have no compunction running against a court he’d describe as having too many liberals, always a popular theme on the right.
Brad Blakeman, a former aide to George W. Bush, expects a split decision from the court. “The most important thing for Republicans in the coming decision is having a united response,” he says. “You don’t want the House saying one thing, the Senate another, and Romney saying something different. They need a unified response so they can campaign on it together.”
There will be pressure on Romney to respond instantly, and he should be cautious, says Blakeman. “The worst thing they can do in a 24-hour news cycle is to make a statement that they’ll live to regret ... Everybody has to stand down until the dust settles and we figure out what the court means.”
In a high court evenly divided with four Republican-appointed conservative justices four Democrat-appointed liberal justices—with only Reagan appointee Anthony Kennedy seen as willing to cross the ideological line—the power of the next president to alter the court’s balance could become a campaign issue.
A 5-to-4 ruling with all the Republican justices voting together would be reminiscent of the court’s ruling in Bush v. Gore, which decided the 2000 presidential election, and the 2010 Citizens United decision, opening the floodgates to special-interest money, which tends to favor the GOP. One Democratic activist imagines ads that show the justices in red and blue robes, as opposed to their customary black attire.
Much of the anxiety among progressives stems from concern that if the court strikes the mandate and mounts a frontal assault on the commerce clause, which is the underpinning of federal regulation, other social programs could be vulnerable. “It’s bigger than health care,” says Kevin Fry of the Alliance for Justice. “People on the left are worried that everything else is on the table, from Medicare to workers’ rights and labor and safety regulations.”
The alliance is urging a campaign focused on the court’s business-friendly, pro-corporate rulings, the so-called 1 percent court, as opposed to focusing as Democrats have in the past on social issues such as affirmative action, abortion, and guns.
Parsing the politics of what the court decides is tricky, with political victory not necessarily accompanying a judicial win. “The greatest intensity is on the side of people who don’t like the ACA,” says William Galston, a senior fellow at the Brookings Institution, “but my experience has been that a bitter loss mobilizes people more than success.” If the Supreme Court overturns the law, it could demoralize Obama’s base—or help him rally the coalition that elected him in 2008.
“The irony is that a negative ruling against the health-care legislation could be a catalyst in getting young people, poor people, and the minorities to vote,” says Democratic pollster Peter Hart.
Whatever the ruling, the political outcome depends on whether Obama can seize the moment.