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.
The trouble for Obama is that, although various provisions of the ACA, such as the ban on denying coverage to patients with preexisting conditions, are on their own quite popular, the law taken as a whole is … well, not. According to most polling on the issue, somewhere between 40 and 50 percent of voters oppose the ACA, with just a third or so in favor. And after as much as $250 million in negative advertising and a nearly infinite amount of mis- and disinformation spread by the right over the past three years, the high negative opinions of the law are pretty deeply burned in.
All of this is one reason why the upholding of the law—and, in particular, the way in which it was upheld—is by no means a negative for Romney. Now, make no mistake, the GOP nominee would have dearly preferred to see the law struck down. But if it were to be sustained, the manner in which Roberts did so was pretty much optimal from the Republican point of view: by deeming the individual mandate kosher not as a regulation of commerce but instead as a tax. And thus open to having its budgetary impact characterized in the most damaging way imaginable. No doubt, the politics of health care are potentially messy for Romney, given the shared genetic code between his own mandate-laden Massachusetts reform law and Obamacare. But that handicap did not prove crippling on the more treacherous terrain of the Republican nomination fight. And the Court’s decision may render Romney’s tear-down-Obamacare stance—he’s vowed to repeal it on his first day in office—even more effective in the general election in at least two ways: by enabling him to tap into the fierce anti-health-care-reform energy that has been unleashed by the Supremes in the conservative base (in the 24 hours after the Court’s decree, the campaign was flooded with donations of $4.6 million); and by helping him further frame the election as a referendum on Obama’s tenure.
In a fall campaign destined to be focused above all on jobs and the economy, it remains to be seen just how close to the center of the action health-care reform may wind up. But regardless, no one can doubt that one of the main consequences of the Court’s decision was to place the matter squarely back into the realm of small-d democratic politics, which, in the end, is where it belongs. And for that, we have no one more so than John Roberts to thank.
Roberts’s opinion leaves no doubt that this was exactly his intent—or, rather, one of his intents. The others, however, are more a matter of conjecture than reliable reportage. Various big brains have attempted to reconcile from a distance the disjuncture between Roberts’s agreement with the hard-right bloc on every key legal argument except the constitutionality of the law, where he sided with the liberal bloc for the first time since he has been chief justice. (My colleague Jonathan Chait offers an especially compelling theory here.)
Whatever his motives, however, by doing so Roberts emphatically ensured that the ruling—and he himself—would be immune to the increasingly adamant accusations of partisanship that have dogged the Court and damaged its stature in the eyes of the public in the wake of Bush v. Gore and Citizens United. It also guaranteed that many of the same hot-eyed ultracons who sang hosannas to him are now braying for his head. The day after the decision, Roberts told a gathering of judges and lawyers at a conference in Pennsylvania that he would soon be headed to spend his summer break on Malta, which, “as you know, is an impregnable island fortress. It seemed like a good idea.”
History will judge the jurisprudential value of Roberts’s opinion in upholding the ACA. But even at this meager temporal remove, its brilliance in one respect is already indisputable: the way it made a mockery of the self-serious self-certainty of any number of self-appointed Court savants. I’m not talking here about the folks at Fox News and CNN who, in their haste to be first to the air with the ruling, broadcast to the world that the individual mandate had been overturned. (Among those briefly given a minor coronary by the errors: President Obama, who—need it be said?—already has quite enough gray hair at this point, guys.)
No, I’m referring here to the likes of Jeffrey Toobin, who raced out of the Court after oral arguments in March and declared, “This was a train wreck for the Obama administration. This law looks like it’s going to be struck down.” Or to former Bush spokeswoman Dana Perino, who, after hearing public comments by Justice Ginsburg that there would be “sharp disagreements” when the decision was handed down, jumped to the entirely baseless conclusion that “that means it’s either a 6-3 or a 5-4 decision against Obamacare.” Or Bill O’Reilly, who months ago huffed and puffed as only he can, “It’s going to be five-to-four [against the law]. And, if I’m wrong, I will come on and I will … apologize for being an idiot.”
In truth, O’Reilly is no more an idiot (on this topic, at least) than almost everyone else sitting rapt on Thursday morning, waiting for history to be made. And that, in the end, was what made the event so wonderful. On a political landscape where so much is familiar and predictable, the ruling was an utter surprise. For a moment, we were all blithering idiots together—though we’ll still take that mea culpa, Bill.
See Also
• Jonathan Chait on John Roberts’s Long Game
• Frank Rich: Roberts Gives Obama a Second Chance