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How the ObamaCare ruling will shape U.S. politics... for the next 40 years
When Romney and Obama face off in November, they won't just be battling for the White House. They'll be fighting over the future of a bitterly divided court
Paul Brandus
Paul Brandus
T

he look on Michele Bachmann's face said it all.

The Minnesota Republican was in the courtroom Thursday morning when the Supreme Court upheld most of President Obama's Affordable Care Act (also known, even in the White House, as "ObamaCare"). She was stunned when she heard the opinion read, according to CNN's Jeffrey Toobin. "You saw (her) face just fall," Toobin said.

Republicans seemed to take it for granted that the court would gut ObamaCare, or at least the most controversial part of it, the individual mandate requiring most Americans to obtain health insurance or pay a fine. But court-watchers might have gotten a clue from Monday’s ruling on the Arizona immigration law — most of which was shot down in another win for the White House — that the court apparently isn't as conservative as we thought. How can Republicans possibly spin the fact that the deciding vote was cast by John Roberts? That this handpicked favorite of George W. Bush sided with lefties on the biggest case to hit the court in decades? It’s about as stunning a turn of events as one could possibly imagine.  

So what happens now? It's a fool's errand for Obama supporters to say, as some have, that the president's mega-victory has sealed his re-election bid. If anything, the president's win may galvanize Republican voters to show up at the polls in droves, much like they did in the 2010 midterms. The passage of ObamaCare helped fuel the rise of the Tea Party then; the court's ruling may have a similar impact. "Thank you, SCOTUS," Sarah Palin (remember her?) said on her Facebook page. "This ObamaCare ruling fires up the troops as America's eyes are opened! Thank God."

Whoever wins in November, here's some free advice: If you want to have a long-lasting impact on the country, nominate the youngest qualified justice you can.

Conversely, some Democrats may get complacent and stay home. This, too, was a factor in the GOP tsunami of two years ago. Turnout on election day is the name of the game, and anger is one hell of a motivator.

That's why President Obama wants to put all this behind him and make sure the election isn't a referendum on ObamaCare. "The highest court in the land has now spoken," he said in the East Room this afternoon. "It's time for us to move forward."

That's not going to happen. That galvanizing I mentioned? It's well underway. The Romney campaign swiftly turned the ruling into a fundraising appeal — and says it got $1 million by lunchtime. That cash isn't from some solitary fat cat, a spokeswomen says, but 13,000 individuals.

Meantime, the GOP war room is running full blast. "The verdict is in," trumpeted a Republican National Committee press release. "ObamaCare is a tax on middle-class Americans." That's true, in a sense: In upholding ObamaCare, the justices labeled the individual mandate a "tax" — the one word the GOP is tarring the president with every chance it gets. Republicans also know, as does the White House, that despite Thursday's ruling, the health-care law remains widely unpopular. A recent Reuters/Ipsos poll said that 61 percent of Americans oppose the individual mandate, and 56 percent oppose the overall law. Also in opposition, the poll says: 73 percent of independents.

So let's move on, Obama says. But first, he conveniently had to mention individual parts of the bill that do enjoy widespread support, like the provision that Americans with pre-existing conditions can't be denied coverage. Also popular: The provision letting children stay on their parents' plans until they're 26, and the one which allows sick uninsured adults to buy coverage in high-risk pools set up by the government. Okay, now we can move on.

Of course, the political fallout of the monumental ObamaCare ruling isn't just about Obama and Romney. While much has been said about how the Supreme Court's monumental ruling will impact the November election, little has been said about how the election could impact the court itself.

Whoever wins the presidency in November will be looking at a high court with several elderly justices. Most of them are liberals: Ruth Bader Ginsburg (who has battled cancer) is 79. Stephen Breyer is 73. And Anthony Kennedy, usually the court's swing vote, is 75. The oldest true conservative: 75-year old Antonin Scalia.

Let's say Obama wins a second term. Ginsburg, Breyer, or both could choose to retire, confident that the president would pick someone of a similar ideological bent. (On the other hand, isn't that what Bush thought of Roberts?) Obama has already picked two justices. If he were to serve another four years, it is not inconceivable that he could select four, perhaps five justices in total — setting his philosophical stamp on the court for decades to come. 

But the stakes are probably even higher if Romney were to win. Those liberal justices would still be the oldest and most likely to go (one way or the other), though none have indicated that they're thinking of stepping down. Could they outlast a potential eight-year Romney tenure? If he were to replace a liberal justice or two, the court would swing decisively to the right.

As for the youngest judges, two are liberals: 52-year old Elena Kagan, and Sonia Sotomayor, who turned 58 on Monday. Three are conservatives: Samuel Alito, 62, Clarence Thomas, 64 last week, and Roberts, 57, who despite the ObamaCare surprise, is still seen as a conservative. These five will be around for the foreseeable future.

By the way, whoever wins in November, here's some free advice: If you want to have a long-lasting impact on the country, nominate the youngest qualified person you can. Republican presidents seem to understand this better than Democrats. Thomas was just 43 when he was appointed by George H.W. Bush in 1991. Scalia was 50 when he was selected by Ronald Reagan, as was Roberts when he was picked by George W.

Liberal justices were appointed at somewhat older ages and thus serve shorter periods: Bill Clinton selected Ginsburg when she was 60, and Breyer when he was 55. All told, the four liberal judges on the court were on average, 54.5 when appointed; the four conservatives much younger: 49.5.

So if you think the stakes are high this November and for the next four years, consider this: Whoever you cast your ballot for — Mitt Romney or Barack Obama — you're really casting a vote that could resonate for 30 or 40 years. If that's not reason to show up the polls, then nothing is.

Read more political coverage at The Week's 2012 Election Center.

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