Ed Kilgore, playing one my least favorite versions of What If since “Vice President Palin” was a less-than-remote possibility, guesses at how a nixing of Obamacare by the SCOTUS would affect this year’s elections:
I’d argue, however, that on the margins at least, a decision invalidating the individual mandate would change thedynamicsof the general election in ways that might prove uncomfortable to the GOP. Currently the Republicans “Repeal!” position is attractive, or at least not repellent, to a wide range of people with a wide range of concerns about ObamaCare, including those who would strongly support for more aggressive federal efforts to expand health care coverage or ban discrimination by private health insurers. If the individual mandate goes down, and with it prospective prohibitions on prexisting condition exclusions, the health care debate during the general election campaign will shift from scrutiny of ObamaCare from what, if anything, Republicans are prepared to offer. In effect, the much-dreaded and highly divisive intra-GOP debate on the “Replace” part of its “Repeal-and-Replace” agenda will be accelerated into the present tense. And at the same time, Republicans will be denied the base-energizing power of the passionate desire to repeal ObamaCare, which has become the default-drive unifying force among conservatives of every hue.
Conversely, the invalidation of a landmark Obama administration accomplishment that virtually all progressives regard as historic if not entirely satisfactory will help Democrats energize their own party base. And you cannot imagine anything more likely to make the last-resort argument about the importance of Supreme Court appointments more tangible and immediate.
NPR’s Frank James is thinking along the same lines, citing recent electoral results as proof that there might be a silver lining to a SCOTUS drop-kick:
[T]he immediate reaction to the total trashing of the law is likely to be gleeful for the right and brutal for the administration. Imagine, too, the pain of Democrats who voted for the law in 2009 and 2010 and are now former members of Congress, at least partly as a consequence.
But in the longer run, there are ways in which the striking down of the law could help the president and his party.… major hit from the high court could create a bounce-back issue for outraged Democrats in 2012 and beyond. The Democrats have done well in recent decades when they could run on popular disaffection regarding health care, particularly in 1992 and 2008. A chance to rally against the tyranny of the court, striking down popular provisions as well as unpopular, could be potent. Consider how much ground the GOP gained running against the liberal court of Chief Justice Earl Warren a generation ago, or against the Roe v. Wade abortion decision since 1973.
Ugh. Maybe. But I’ll be honest: my first, second, and maybe third response to a SCOTUS nixing of Obamacare (which, for the record, I think is inferior to a single-payer system) will be intense enervation. The idea of kinda-sorta starting from scratch, after a torturous two years of debating this specific bill — and nearly a century of striving for universal health care in one form or another — towers so unappealingly, it summons thoughts of our political system as a late-imperial revamp of No Exit.
Full disclosure: I’m a cancer survivor. I had leukemia when I was very young, and I was lucky enough to have it purged from my blood relatively quickly and without the need for x-rays or more than a few bouts of chemotherapy. I’ve had health insurance all my life, either from my parent’s or my own employer’s plan. And it’s not clear that, even if I and the rest of the country were to be flung back into the dark ages of death (financial or literal) from preexisting condition, my history with cancer would brand me with a scarlet letter of outsized risk.
In other words, I’m far from the top of the list of those with the most to fear.
Still, the mix of weariness, fatalism, despondency, and sublimated anger that I feel when I imagine being, once again, merely one stroke of bad luck away from losing health insurance perhaps semi-permanently? When I think of the millions of people who, unlike myself, would immediately be thrown curbside by a 5-4 majority unable to keep its ideological zeal in-check? This must be the way the Yippies felt during the insidious time between the ’68 DNC flame-out and Rubin’s embrace of proto-Reaganite “self-improvement.” Or maybe it’s more like how Mookie felt as he grabbed threw off the lid and grabbed that trash can with both hands.
Which brings me to the other potential consequence of a bold move by the SCOTUS that’s worrisome — what this would do to the political culture in the United States. Yes, we’ve all heard how ugly, uncivil, uncouth, and unhealthy is our politics today. But anyone with passing familiarity with American history well knows that things could be, have been, far worse. What if the SCOTUS, by striking-down Obamacare, throws a lit match into a deceptively placid but in truth frightfully deep pool of kerosene? What if whatever pretenses toward comity that linger are extinguished and American politics enters into its most explicitly Hobbesian moment since at least the 1960s, if not earlier?
Staying in that romanticized but in reality quite unpleasant (at least it seems so to me) epoch, let’s remember that undergirding all of that tumult was perhaps the most robust and prosperous economy that human civilization had theretofore seen. Americans were only then beginning to truly distrust, even loathe, their bedrock civil institutions. The climate crisis was there, of course, but it wasn’t here the way it is today. There was no looming tidal wave of debt. The country could handle such a prolonged period of in-fighting and growing pains. Wading back into those choppy waters today, however, seems to me to be a much more foolhardy undertaking.
Because of all this and more, I still don’t think the Court will do something as rash as many liberals now fear they might. As Senator Blumenthal said yesterday, these Judges must know that their power is an almost miraculously ephemeral thing. They and their posterity live on little more than sentiment; the noble lie that politics ends at 1 First Street’s first stone step. If for no other reason than not wanting to be remembered by future Justices as the ones who threw it all away, I think the conservative majority will restrain itself. This may be one of those few instances in which the human obsession with the preservation of institutional power leads to a positive outcome.
If it’s not, though, I’ll pass on the pep-talks. Maybe it’ll eventually lead to better things (at what cost is unclear); but it’ll be awful, terrible, very bad, and no good news just the same.
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