“If their usual practice holds, the justices will convene privately on Friday in a small oak-paneled conference room adjoining the chief’s chambers to take a preliminary vote. With no law clerks or secretaries present, Roberts will open the discussion and cast the first vote. The justices will go around the table in order of seniority, voting and laying out their rationales. A decision in the dispute is not likely until late June…
“Both he and the usual swing-vote justice, Anthony Kennedy, seemed right in the middle of the two ideological wings. Whichever way Roberts goes, legal analysts on both sides of the case predict, the chief justice is likely to write the main opinion for the court.
“But despite Roberts’ past association with the Republican party and a reputation for overseeing judgments that have favored the right, it remains far from clear how he will cast his vote.
“Throughout the arguments this week, he referred to historic milestones, including of the New-Deal era when the justices bolstered federal power. Overall, he suggested from his questions he was weighing whether a decision to strike down the individual mandate would be a break from past court cases or be in sync with them. Whether that means he is with the Obama administration or against it, is still a matter of speculation.”
“If the administration loses its argument, one early strategy is to run squarely against the Supreme Court. Democrats believe that Mr. Obama could fashion himself as a modern-day Franklin D. Roosevelt, trying to convince voters that a majority of the justices are in the pocket of the Republicans. A Democratic senator on Wednesday referred to that as the ‘martyr strategy.’…
“‘If this court overturns the individual mandate, it will galvanize Democrats to use the courts as a campaign issue,’ said Neera Tanden, president of the Center for American Progress, a liberal research organization. ‘The idea that we would have gone through Bush v. Gore, Citizens United and now this.’
“Mr. Obama, who has signaled his intention to run against Congress in the mold of Harry S. Truman, could add the Supreme Court to his list of antagonists. It remains an open question whether the argument will resonate as it did in 1936 for Roosevelt.”
“[T]he conservative revolution in constitutional law has fizzled. The court has reaffirmed the right to abortion, intervened in wartime military decisions, upheld distortions of the separation of powers such as the independent counsel statute, and barely nibbled at the outer reaches of the New Deal expansion of federal power over the states…
“Plainly, the next president will have the chance to lock into place a conservative court majority or to launch a liberal counterrevolution. Should President Obama win re-election, he may even appoint a majority of the Supreme Court that conceivably could be in a position to reverse any decision this year blocking ObamaCare…
“Only conservative control of both the executive and legislative branches can replace ObamaCare with sensible, pro-market health-care reforms. Winning a Senate majority could give Republicans the leverage to moderate Obama’s Supreme Court nominees in a second term. But it cannot override a presidential veto, one sure to greet any bills repealing ObamaCare. Conservative control of the White House and both houses of Congress will stop further adventures beyond the Constitution’s limits, relieving the need for a judicial salvation that may never come.”
“There’s more moaning: What about the policy mess Republicans might be left with? What if voters blame the GOP for the loss of more popular provisions? What if the party gets dinged for having no comprehensive alternative? What if the focus goes back to insurers, elevating Mr. Obama’s class warfare? Misery and more misery.
“The mistake here is one the Supreme Court didn’t make: Confusing politics with the real issues — the Constitution, and liberty. Or, as put by David Rivkin, the attorney who started the 26-state lawsuit against ObamaCare: These concerns are bogus. We have already won in the sense that the entire court’s attention was on the Constitution’s structural limitation on governmental power. That’s the ultimate indictment — not just of ObamaCare, but of everything this administration has done.’
“Through that lens, the GOP has no obvious political problem. Republicans can argue that any fallout from partial or full repeal of the law — higher prices, the loss of some provisions — is the fault of a Democratic administration that strapped the market to a shoddily considered, partisan bill that failed judicial muster. And the risk of the same is the GOP argument for why it won’t be proposing its own 2,700-page alternative.
“As to enthusiasm come November, what better argument can the GOP be handed than proof, via a Supreme Court repeal, that Mr. Obama cannot be trusted with a second term?”
“So what would that mean in practice [if ObamaCare is struck down]? Obviously none of the things that haven’t taken effect yet would happen. But what about the parts of the law that are already in operation?
“Health lawyers mostly aren’t sure, but their opinions generally range from ‘God only knows’ to ‘bedlam’ to ‘chaos.'”
“The president was pleased with the presentation and remains convinced that the Affordable Care Act is constitutional.” Click the image to watch.
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