Political Animal


March 28, 2012 3:35 PM The Court and 2012

By Ed Kilgore

Well before we know what the Supreme Court is actually going to do with respect to ObamaCare, my friend Jonathan Bernstein has bravely essayed the opinion at TNR that the decision will have “little or no effect” on the 2012 presidential election.

To a considerable extent, this judgment probably flows from Jonathan’s position on the fundamentals-versus-campaigns spectrum, according to which he is perpetually skeptical that this or that issue or event will matter much in a contest where votes largely follow partisan patterns and reactions to big external considerations like economic trends. But he makes some sound empirical points about the particular lack of salience of court decisions, and even of ObamaCare, as factors that separate sheep from goats. This point is particularly strong:

If ACA was really a make-or-break priority, there’s no way that Mitt Romney would have emerged as the GOP pick. That’s not to say that people don’t care about it; it’s just that they care about it as a function of, say, disliking Barack Obama. For a large number of opponents, if it wasn’t health care, it would be something else.

I’d observe that much of the drama in the Republican nominating contest was indeed directly or indirectly related to Romney’s difficulties in articulating a case against ObamaCare, and that his ultimate triumph owes more to the inability of the GOP to find a minimally credible alternative once Tim Pawlenty went down than to any calculated judgment of the importance of this or that issue in the general election.

But still, Jonathan’s right, opposition to ObamaCare is just one of various deep conservative grievances against the incumbent, and just one of various preoccupations of swing voters, most of whom have not been directly affected by ACA just yet.

I’d argue, however, that on the margins at least, a decision invalidating the individual mandate would change the dynamics of the general election in ways that might prove uncomfortable to the GOP. Currently the Republicans “Repeal!” position is attractive, or at least not repellent, to a wide range of people with a wide range of concerns about ObamaCare, including those who would strongly support for more aggressive federal efforts to expand health care coverage or ban discrimination by private health insurers. If the individual mandate goes down, and with it prospective prohibitions on prexisting condition exclusions, the health care debate during the general election campaign will shift from scrutiny of ObamaCare from what, if anything, Republicans are prepared to offer. In effect, the much-dreaded and highly divisive intra-GOP debate on the “Replace” part of its “Repeal-and-Replace” agenda will be accelerated into the present tense. And at the same time, Republicans will be denied the base-energizing power of the passionate desire to repeal ObamaCare, which has become the default-drive unifying force among conservatives of every hue.

Conversely, the invalidation of a landmark Obama administration accomplishment that virtually all progressives regard as historic if not entirely satisfactory will help Democrats energize their own party base. And you cannot imagine anything more likely to make the last-resort argument about the importance of Supreme Court appointments more tangible and immediate.

Ultimately, judgments of the potential impact of this or that factor in a presidential contest depend heavily on how close a race it becomes. After 2000, Democrats could and did cite a vast array of “pivotal” developments, from Al Gore’s inconstant message to Ralph Nader’s presence on the ballot to Joe Lieberman’s concession on the counting of military ballots in Florida to—most obviously—the Supreme Court’s intervention. The close margin in 2004 helped convince many Democrats that a single development—the “Swift Boat” ads of August—did in Kerry. If 2012 turns out to be a barnburner, then just about anyone can make a case that subtle changes in the issue landscape, candidate gaffes, debates, ads, GOTV efforts—all those things that political science “fundamentalists” tend to deride—were crucial. I see no reason to believe a landmark Supreme Court decision on Barack Obama’s central domestic policy initiative might not qualify as well.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.


  • T2 on March 28, 2012 3:53 PM:

    the Game is to show Mr. Obama to be a failure, ineffectual, impotent. Each and every rejection of an Obama sponsored bill underlines that goal. Declaring his signature law as unconstitutional would be the ultimate Fail, the ultimate GOP point made. It will matter.

  • tom on March 28, 2012 3:54 PM:

    How damaging do you think it would be to have Romney running aroud talking about Obama's unconstitutional power grabs? He would, after all, have the court to back him up on that.

  • T2 on March 28, 2012 3:57 PM:

    sorry...but to add....Finding ACA unconstitutional will give the GOP and TeaBaggers the right to say "See, we told you he was trying to steal our country, and there is the proof".
    It will matter. But not to 51% of us, hopefully.

  • Equal Opportunity Cynic on March 28, 2012 4:02 PM:

    But the "unconstitutional power grabs" is a message aimed at the Republican 27%, not the rest of us. The center, not understanding mandates, may not like them (much as i didn't when i lived in MA). But do they really see this as Obama trying to make our country socialist? I doubt it.

    There was a poll posted somewhere today underscoring that the public expects the SCOTUS to decide this along party lines. People are very cynical now about party hackery and the SC has utterly destroyed any reputation it might have as an impartial arbiter. They'd see a Roberts Court decision as nothing more than Republicans trying to move the football closer to the Democratic goal line, which is what it will be.

  • Danp on March 28, 2012 4:03 PM:

    Since when have Republicans ever asked Republicans to have government fix anycthing? They're all about blame and victimization. After electing Republicans they still whine that they got fooled, but it still would have been worse to have Dems in charge.

  • sick-n-effn-tired. on March 28, 2012 4:17 PM:

    If it is repealed let me be the first to ask Candidate Romney what he intends to do about the Genocide of 400,000 that is propagated by lack of healthcare .
    I guess people with elevators for their cars don't worry about that shit do they Mitt.

  • CharlieM on March 28, 2012 4:18 PM:

    I'm not convinced an overturn is going to matter that much to the election.
    I think anyone to whom the Teabagger's claim of "See, we told you!" is appealing is probably not in the Obama camp anyways.
    I know all the talking heads have been saying the past few days a strike down of the law will have a large negative impact on the Obama campaign. But I'm still trying to figure out why that would be.
    Would ACA supporters become so disillusioned with the result that they would be susceptible to the TeaBag wackery?
    Certainly possible (as cited) that a strike down could have a positive Obama effect (energize the base). But a lot of what I'm hearing I file in the "It's always good news for the Republicans" folder and chalk it to standard talking head prattle.

  • Unhappy Legal Professional on March 28, 2012 4:24 PM:

    The court took it too far. Previously the court illegally inserted itself in 2000--they stepped in and stopped the vote count in Florida--oh, in such a hurry, and-- uh, Sandra Day O'Connor cried she did want to stay another term with the Supreme Court --saying to her husband--oh no,they voted for Gore: catastophe.
    So they voted 5-4. All of us have the article from Newsweek. Dream on with your cover-up.
    This RADICAL RIGHT Supreme Court is so absolutely and transparently questionable since then, and since Citizens United, and we have Justice Thomas' wife lobbying outside for the tea party, and Justice Thomas of course has not recused himself-- and there we see this court deciding on the Affordable Health Care Plan.
    It is so unfair. It is insane.
    Recognize it America--the extreme right wing of the Republican Party has taken over America.

  • Ron Byers on March 28, 2012 4:32 PM:

    CharlieM is right. Just who is going to change their vote over this decision anyway? If anything a loss in the Supreme Court could help Obama. It could also lead to a better law if we get the expanded Medicare option.

  • Anonymous on March 28, 2012 4:40 PM:

    Unhappy Legal Professional,

    My respect for the Supreme Court dropped through the floor with Bush v. Gore. It hasn't gotten any better since. I used to believe that others, especially in the courts, who were committed to the rule of law. Now I am convinced the Supreme Court has totally given itself over to the Golden Rule, he who pays the most gold rules. That is deeply sad and profoundly troubling.

  • Big River Bandido on March 28, 2012 4:50 PM:

    If the Democratic Party as it is constituted in Washington is handed such a perfect wedge issue in time for the fall campaign, rest assured, they'll find a way to blow it.

  • Unhappy Legal Professional on March 28, 2012 5:00 PM:

    Yes, I remain stunned and dismayed. It is one thing after the other as these years go by. As if to these right wingers that a random citizen can't connect the dots. With the illegal election in 2000, Republicans have stock-piled the Supreme Court--- and here we have the results.
    And it is clear the Court in 2012 took this case during an election year.
    Recall Alito shaking his head at the president during the state of the nation speech when the president spoke of Citizens United. Alito-- with this visible activism.
    It really takes your breath away. And President Obama is so superior in terms of constitutional law. It simply deflates you.

  • TCinLA on March 28, 2012 5:55 PM:

    Given what it looks possible this court may do regarding health care in this country, Bernstein has his head up his ass.

  • bobbo on March 28, 2012 7:45 PM:

    Wow. How can you talk about the "pivotal" factors of 2000 without mentioning the fact that the press, including the so-called "liberal" media, went out of its way to destroy Al Gore? And no, "Al Gore's inconstant message" doesn't do the trick. If anything, that weak tea buys into the whole bogus narrative that the press borrowed from the Bush campaign and told about Gore for 18 months - "serial exaggerator," claims he invented the Internet, claims he was the basis for "Love Story," Alpha Male, earth tones, sighed at the debates, etc., etc., etc. I know it was an ancient 12 years ago, but our country would have been a much better place if that election had turned out differently.

  • anon's honey on March 28, 2012 7:58 PM:

    bobbo--true. The press ridiculed Al Gore and later John Kerry, adversely affecting both elections. Depicting the illustrious A-student Gore into a goof, promoting C- student Bush, and then four years later diminishing Kerry's actual military service in favor of Bush's sketchy national guard service. And who would you rather have a beer with...it is so worrisome and it is all a big mess.

  • anon's honey on March 28, 2012 8:02 PM:

    bobbo--true. The press ridiculed Al Gore and later John Kerry, adversely affecting both elections. Depicting the illustrious A-student Gore into a goof, promoting C- student Bush, and then four years later diminishing Kerry's actual military service in favor of Bush's sketchy national guard service. And who would you rather have a beer with...it is so worrisome and it is all a big mess.