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Win-Win-Win

John Roberts saved the Court, Obama got his policy, and the GOP got its issue. (Plus, the public got to laugh at the errors of the media, and, oh, yes: health care.)

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Illustration by André Carrilho  

High-stakes national politics is, as a rule, a decidedly zero-sum game. When Republicans rise, Democrats decline; when Democrats advance, Republicans recede. But every so often an event transpires that produces a rule-breaking result—not just a win-win but a win-win-win, in which both parties and the system writ large all emerge arguably better off in the aftermath than they were beforehand. Such events are rare and strange indeed: They are the Beltway equivalent of black swans.

It was one of those beauties that came floating down the Potomac River—or, rather, waddling down the steps of the Supreme Court—on the morning of June 28, when the nine justices who compose that august body issued their landmark ruling on the Affordable Care Act. Since March, when oral arguments in the case before the Court seemed to have unfolded abominably for Barack Obama’s administration, a firm consensus had formed on all sides (with only a few stray dissenters) about the likely outcome: Either part or all of the president’s health-care overhaul would be overturned. The White House was braced for that eventuality. The GOP was giddy at the prospect. And from beat reporters to cable bloviators, every media personage in town stood poised to render judgment about just how devastating the fallout would be to Obama’s bid for reelection against Mitt Romney.

Then, voilà, the decision arrived—and overturned little except for everyone’s expectations. The most controversial and presumably vulnerable aspect of the law, the individual mandate, was upheld as constitutional, though not on the basis of the argument the administration had pressed most vigorously. The portion of the act seen as sturdiest, the expansion of Medicaid, was significantly scaled back (and by a yawning 7-2 margin). And, of course, the crucial swing vote turned out not to be cast by the usual suspect, Anthony Kennedy, but by Chief Justice John Roberts—who was immediately, and hilariously, assailed on the right as the new David Souter. (Ouch.)

That the ruling in National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services et al. handed a mammoth victory to Obama was easy enough to see. At the same time, if less obviously, however, it held out a healthy degree of political upside to Romney, as well as clarifying and raising the stakes in an election that recently has teetered on the edge of terminal triviality. For the conservative legal theorists who advanced the constitutional arguments against the ACA, the decision provided a verdict they found unwelcome but also a measure of juridical vindication. For Roberts, it established his capacity as a guardian of the Court’s legitimacy and his savvy as a political operator—and armed the Court itself with a potent riposte to those who saw it falling victim to a kind of partisan coup. The ruling, in fact, only yielded one screamingly (and satisfyingly) clear set of losers: the conventional wisdom and the gaggle of gasbags who had foolishly propounded it.

For the president and his people, Thursday was a day of evident satisfaction, barely concealed relief, and (mostly) private exultation. Speaking in the East Room of the White House two hours after the ruling was released, Obama was at pains not to perform the funky chicken in the end zone. “Whatever the politics,” he said soberly, “today’s decision was a victory for people all over this country whose lives will be more secure because of this law.” On Twitter, meanwhile, the former White House political director and current DNC executive director Patrick Gaspard blurted out a more triumphal, if less temperate, expression of what many of the Obamans were experiencing right then: “It’s constitutional. Bitches.”

The intensity of emotion was hardly surprising given the pervasive sense of a disaster barely averted. And, to be sure, from the White House’s perspective, the overturning of the ACA, in part or in toto, would have been a calamity in terms of both policy and politics. With respect to the former, it almost certainly would have meant the unraveling of the most ambitious and far-reaching item on Obama’s first-term domestic agenda. And on the latter, it would have let Romney and his Republican allies paint Obama as a president who wasted more than a year, during which the country was in economic crisis, pushing a law that was beside the point, that most Americans were not clamoring for, and that was unconstitutional to boot. As a reckless, feckless loser, in other words.

Instead, Obama will now have a chance to bring the ACA to fruition and carry the country many steps closer to the civilized normality of universal coverage—if he wins reelection, that is. Which brings us to politics, where the Court has given Obama a reprieve just as it has on the policy side. The president’s sporadic, inconsistent, and vaguely feeble efforts to persuade the public of the ACA’s virtues are often (correctly) cited as the signal political failure of his first term. Now he has another chance to make his sales pitch, only this time with the imprimatur of the Supreme Court and its conservative chief justice affixed to the product that he is peddling—and in contrast to Romney’s essentially nonexistent alternative health-care plan.


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