Is this good or bad news for Obama? Well it depends on how the Court rules. On the face of things, you’d think getting the Supreme Court’s imprimatur on ObamaCare would be a feather in Obama’s cap, especially inasmuch as it would help dissipate the odor of illegitimacy raised by the unceremonious way it was rammed through Congress in March 2010. And you’d expect, by the same token, that having his principal legislative achievement declared lawless by the Supreme Court would be a political calamity.
Ann Althouse (see here and here), who knows a thing or two about constitutional law and the Supreme Court's sensitivity to political pressures, thinks those appearances are deceptive. The Court would be doing Obama a huge favor, she argues, by taking all of ObamaCare off the political table:
“I'm thinking Obama's best hope for reelection is for the Supreme Court to strike down ObamaCare — find the individual mandate unconstitutional and the remainder of the law inseverable. Take the whole thing down. Let Obama rhapsodize about the beautiful future that might have been — it's very pretty when it's not real — and blast away at that terrible Supreme Court that reaches beyond the realm of the law. Ironically, Obama would be publicly denouncing the Court for getting political and secretly grateful that the political benefit came to him.As improbable as it sounds on first hearing, Althouse’s argument make sense. Recent election returns from Ohio underscore ObamaCare’s astonishing unpopularity. The Supreme Court’s upholding ObamaCare would therefore leave Obama with an unenviable choice. He'd be expected to give it a full-throated defense that would give otherwise persuadable independent voters another reason for voting against him. Yet anything less will invite the contempt of the Democratic base Obama needs to energize his reelection campaign. Were the Supreme Court to strike down ObamaCare in its entirety, however, Obama could change the subject with independent voters while the specter of more judicial usurpations by a Supreme Court with more Republican appointees stokes up his Democratic base. Paradoxically, Althouse contends, Obama wins politically by losing legally.
“Think about it. Obamacare is the nonviable fetus that we continue to carry to term, agonizing in anticipation of a stillborn. It's very sad. But there is the possibility of ending the existence of that misbegotten child. Do you like my metaphor? Within it, the Supreme Court is the abortionist. It can intervene right now and end the suffering.”
Can she be right? Here’s a test. Right now it’s looking like the Republican nominee will be Mitt Romney. How must the prospect of the Supreme Court’s ruling on ObamaCare next June look to him?
Again, it obviously depends on how the Court rules. The prospect of it upholding ObamaCare’s constitutionality presents Romney with an unenviable choice of his own. He’d have to reaffirm his promise to Republican primary voters to repeal it and therefore explain to independent voters why what he once insisted was good for Massachusetts is bad for the nation. I suppose, if you set your mind to it, you could come up with a campaign pitch that more effectively cemented Romney’s reputation for unprincipled opportunism, but it wouldn’t be easy.
Were the Supreme Court to strike ObamaCare down, however, an argument that sounds ludicrously self-serving coming from Romney would suddenly command the authority of constitutional law. Improbably enough, Romney might even end up looking to suddenly attentive independents like he knew what he was talking about all along. But, in any event, his equivocations respecting health care would at least seem relatively harmless in the grand scheme of things. And Romney would be well-positioned to make political hay by reminding independent voters that Obama’s principal legislative “achievement” was an act undertaken in reckless disregard of the Constitution. It's hard to see how Romney wouldn't win big politically by winning legally. Indeed, having the Supreme Court strike down all of ObamaCare next June looks to me like the answer to his political prayers.
General presidential elections are zero-sum games between the major party candidates. So the one thing we know for sure is that Althouse and I can't both be right.