TIMOTHY NOAH SEPTEMBER 28, 2011
I leave the legal analysis to my former Slate colleague, the divine Dahlia Lithwick. But surely from a political standpoint, President Obama is smart to press the Supreme Court for a health care decision this coming June, no? If the Court upholds Obamacare then we will all be reminded that this sole accomplishment makes Obama the most consequential Democrat since Lyndon Johnson to occupy the Oval Office (even if he did fail to revive the economy and let GOP bullies push him around for way too long). If the Court strikes down Obamacare then Obama's presidency will be pretty much of an unmitigated failure (with an asterisk perhaps for the Dodd-Frank financial reform act). Which, I'll grant you, would be a very bad outcome for the nation.
But slapping down a sitting president in a transparently partisan manner with a decision that did violence to eight decades of jurisprudence and that would literally cost American lives--yes, I think a "no" vote would be a pretty bad way for the Court to go--would be a fantastically effective way to "energize the base," as we say in Washington, and maybe rope in some independents, too. What better way to say, "We need to give this guy four more years, never mind what you think of him personally, so we can change the composition of this reactionary and intellectually bankrupt Court"? FDR used an election victory to harass enough of the "nine old men" of the Supreme Court into retirement or submission to rescue the New Deal (even if his opening move, the court-packing scheme, was a busted play). That probably wouldn't work today. The Supremes aren't that old and Mr. Dooley's famous adage that "th' Supreme Court follows th' illiction returns" has not been true for a very long time (except in the very literal sense that the Supremes are alleged to have an election-night betting pool). Th' Supreme Court follows th' party line of the feller what niminnated 'em. But Mr. Dooley's wisdom is irrelevant here because the election will be after the health care decision, not before. Th' illiction returns would clobber th' Supreme Court.
Election law blogger Rick Hasen, I see, is also thinking along these lines.