In this week's magazine, New York contributing editor Jason Zengerle writes about how Democrats have reconceptualized a possible Supreme Court rejection of Obamacare from a defeat to this scenario: "Obama running for reelection not only against Mitt Romney and the House Republicans but against the Court as well." While we still don't know whether the justices will even strike down the Affordable Care Act (Biden thinks not) or what effects such a move would have on the November election (Mark Penn writes in the Washington Post that this will probably just energize Obama's existing base), Democrats certainly are hard at work preparing the way for an anti-SCOTUS strategy.
Today, speaking on NBC's Meet the Press, New York Senator Chuck Schumer said that, "Should the Supreme Court overturn this law, it would be so far out of the mainstream that the court the most activist in a century." Former DNC chairman Howard Dean, appearing on Fox News Sunday took it a little farther, arguing that, "This is the most political Supreme Court we've ever had, 73 percent of the American believe that politics motivates the Supreme Court. I'm one of those 73 percent." (According to a Bloomberg News survey, a full three-quarters of Americans think politics will influence the Court's decision.)
Former Mississippi governor and RNC chairman Haley Barbour, also appearing on Fox News Sunday, pointed out that a majority of Americans — 67 percent according to some polls — want either the individual mandate or the entire bill repealed. But lukewarm energy and turnout among GOP voters may mean that re-energizing Democratic voters could be enough for President Obama to regain his edge.
Neera Tanden, the president of the left-leaning group Center for American Progress told the Washington Post:
If they overturn the individual mandate and undermine the central element of this bill a few months before the election, it will anger Democrats and rile up the base. People will see it for what it is: an activist court rendering a partisan decision.
Mark Penn, also in the Post, may not be convinced that politicizing the Supreme Court will be effective (or that Obama would even go for it), but he, too, can see the Democratic political wheels turning.
If they rule against health-care reform, the justices might be doing Obama a favor. He never really won the public battle on the issue. So he could take the high ground — disagreeing with the decision but showing respect for the court and for the American people, and vowing to continue the fight for health care for more Americans.
But maybe all this public strategizing isn't meant for Obama at all, but for Chief Justice Roberts. Zengerle again:
With the public’s trust of the judicial branch tying a historic low of 63 percent, down thirteen points from just two years ago, it’s doubtful that Roberts — who has wanted to be seen as an impartial “umpire” — would choose to imperil that trust even further with a ruling that would place the Court squarely in the election-season crossfire. Overturning Obamacare would be a political decision. But so, in its own way, would upholding it.
Depending on how the Court votes and how the two parties (but mainly the Democrats) spin it, the real seismic shift in all this may be in how the highest court in the nation is perceived — as less an "umpire" of the Constitution and instead the last bastion of our increasingly divisive and rigid two-party system.