Paul Waldman makes the case that Democrats shouldn’t second-guess themselves about the ACA if it’s knocked down by the courts. His argument? It didn’t matter what was in universal health insurance; whatever was in it, Republicans would have found a Constitutional case against it, no matter how flimsy, and it plays out the same.

I agree in part, and disagree in part (with SCOTUS on our minds, we all have to write like that this week).

I agree that the Broccoli Liberty argument is entirely bunk, and therefore I agree that it’s likely there would have been some sort of Constitutional case against any possible universal health care law passed by the Democrats. And I agree with most of Ezra Klein’s history of how this particular Constitutional case moved from joke to, well, joke that might get five votes from the Supremes. I certainly think it’s incredibly naive for single-payer advocates to believe that “Medicare for all” wouldn’t elicit a Constitutional challenge (and, by the way, incredibly naive to believe that the logical next step if ACA is voted down would be passing single-payer, and naive to believe that Medicare for all would be a one-page bill).

However: none of that means that the eventual result would have turned out exactly the same. To begin with, of course, we don’t know what the Court is going to say on Thursday (I think Klein is absolutely right when he says speculation about what they’ll do is pretty much worthless).

The truth is that (as the decision in the Arizona case should remind us) the current Court is certainly not simply the legal equivalent of the Sean Hannity, no matter how many crazed partisan rants Scalia might indulge himself in. We might get there in the future (or not), and we might get some decisions that sure look very partisan, but that’s not where we are now. It’s simply not true that there are five solid votes (or even four solid votes) for whatever wacky, ad-hoc legal theories GOP spinmeisters come up with.

Yes, four of those Justices are strongly conservative by all measures, but there is a real difference between supporting a long-standing judicial program and simply doing whatever the short-term partisan preferences of the Republican Party might be, even though those things will naturally (and quite legitimately) overlap much of the time. I do believe that Bush v. Gore was decided on ad-hoc partisan grounds…but that’s 12 years ago already, and I don’t think that anything since then shows that the Court’s conservatives are merely partisan hacks.

So: maybe, on this issue even if not on others, there are five solid votes against anything that Obama and the Democrats would have done. Perhaps not. We’ll find out more on Thursday. And, yes, then Democrats should learn from it — because unless they want to give up passing any laws at all until they have a better mix on the Court, it certainly does make sense for them to second-guess themselves and learn how to live with the Supremes they have.

[Cross-posted at A plain blog about politics]

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Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.