The Court and 2012

Well before we know what the Supreme Court is actually going to do with respect to ObamaCare, my friend Jonathan Bernstein has bravely essayed the opinion at TNR that the decision will have “little or no effect” on the 2012 presidential election.

To a considerable extent, this judgment probably flows from Jonathan’s position on the fundamentals-versus-campaigns spectrum, according to which he is perpetually skeptical that this or that issue or event will matter much in a contest where votes largely follow partisan patterns and reactions to big external considerations like economic trends. But he makes some sound empirical points about the particular lack of salience of court decisions, and even of ObamaCare, as factors that separate sheep from goats. This point is particularly strong:

If ACA was really a make-or-break priority, there’s no way that Mitt Romney would have emerged as the GOP pick. That’s not to say that people don’t care about it; it’s just that they care about it as a function of, say, disliking Barack Obama. For a large number of opponents, if it wasn’t health care, it would be something else.

I’d observe that much of the drama in the Republican nominating contest was indeed directly or indirectly related to Romney’s difficulties in articulating a case against ObamaCare, and that his ultimate triumph owes more to the inability of the GOP to find a minimally credible alternative once Tim Pawlenty went down than to any calculated judgment of the importance of this or that issue in the general election.

But still, Jonathan’s right, opposition to ObamaCare is just one of various deep conservative grievances against the incumbent, and just one of various preoccupations of swing voters, most of whom have not been directly affected by ACA just yet.

I’d argue, however, that on the margins at least, a decision invalidating the individual mandate would change the dynamics of 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.

Ultimately, judgments of the potential impact of this or that factor in a presidential contest depend heavily on how close a race it becomes. After 2000, Democrats could and did cite a vast array of “pivotal” developments, from Al Gore’s inconstant message to Ralph Nader’s presence on the ballot to Joe Lieberman’s concession on the counting of military ballots in Florida to–most obviously–the Supreme Court’s intervention. The close margin in 2004 helped convince many Democrats that a single development–the “Swift Boat” ads of August–did in Kerry. If 2012 turns out to be a barnburner, then just about anyone can make a case that subtle changes in the issue landscape, candidate gaffes, debates, ads, GOTV efforts–all those things that political science “fundamentalists” tend to deride–were crucial. I see no reason to believe a landmark Supreme Court decision on Barack Obama’s central domestic policy initiative might not qualify as well.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.