Recall the scorn toward health reform dripping from the lips of Injustice Antonin Scalia. Or think of the tight-lipped Clarence Thomas, who could send a mannequin to sit in his place at the court's oral arguments for all the difference his brooding presence makes. Along with the more plausibly judicious Samuel Alito, he too had more than likely made his decision. And so on the nation's highest court, satire replaced stare decisis in a slightly altered version of the Red Queen's jurisprudence in Alice in Wonderland: First the verdict, then the trial.
Some observers, and administration officials, hold out hope that Chief Justice John Roberts and Justice Anthony Kennedy will decide to save health reform from the revanchist claims of right-wing constitutionalism. I'm pessimistic because I lived through Bush v. Gore, when the court acted like a political ward committee, stopping the vote count in Florida to hand the presidency to George W. Bush by the margin of a single judicial vote.
A politically infected court could produce a politically unexpected result, strengthening Obama and weakening Romney and the Republicans.
Now comes the historic decision on health reform — which could reach far beyond the case to fray the whole fabric of progress in modern America. To overturn the individual mandate, to throw out all or most of the rest of the law, would be an act of naked judicial activism, which conservatives profess to despise. In truth, though, they practice it vigorously, in barely concealed disguise, when it advances their own ends. Depending on the "reasoning" rationalized by five horsemen of the judicial right, they could jeopardize other basic protections — for example, the prohibition against segregation at distinctly local enterprises like lunch counters, a prohibition that depends on a generous and long-prevailing view of federal regulation of interstate commerce.
An over-reaching court could shatter the vestigial credibility of an institution defaced by Bush v. Gore and by Citizens United — which incredibly held that there is insufficient evidence that money corrupts politics and thereby loosed a tide of special interest cash that is engulfing the politics of 2012. The opponents of ObamaCare, congregated and clamoring on the steps of the court, demanded a judicial killing of the law on the grounds that it is unpopular. In fact, as the pollster Mark Mehlman has demonstrated, the margins here are "rather shaky" and some surveys "even suggest that more Americans now favor than oppose the reform." In any event, it is emphatically not the province of the judicial branch to follow the polls rather than precedent.
But those Tea Party protesters outside may be matched by a Tea Party Supreme Court inside. And such a court is almost certainly the only means to the destruction of health reform. As and if more of the law's provisions take effect — when Americans realize that there are no death panels, no rationing, no cuts in Medicare services — and when more of the law's benefits kick in, it will be politically toxic for any president or Congress to attempt to repeal. Indeed, living with Medicare — with seniors staying healthy and alive because of it — is what secured its status as an overwhelmingly popular federal program once it was operational. And this year, Republicans will taste the political toxicity of their own reckless proposal to privatize the program.
Largely missing from the coverage of the health reform case are the most important consequences of nullifying the law: The tragedy of tens of millions who would again be left without insurance; the plight of young adults now on their parents' policies who would be thrown off; the desperation of those with pre-existing conditions who would be left with no coverage and nowhere to turn; the agony of patients who, because of lifetime limits on their insurance, would see it canceled just before the next round of chemotherapy.
It took a hundred years to remedy all of this by passing health reform; it could take decades to pass it again if and after a changed Supreme Court reversed an ideologically driven denial of health care as a fundamental human right and not just another product in the market place.
Of course, the court could split the difference, voiding the mandate while validating other elements of the legislation. But to retain provisions like the one on pre-existing conditions would trigger an explosion in insurance premiums if people weren't required to buy coverage and could just wait for it until they were already ill. This may be the unlikeliest outcome of all. Both Roberts and Kennedy appeared inclined, in the absence of the individual mandate, to function as a super-legislature and dispense with the entire bill. During the argument, the Obama administration gave limited support to that notion — that some parts of the law simply can't be sustained without a mandate.
The president certainly doesn't want to see his landmark achievement, unequaled since the New Deal and the civil rights revolution of the 1960s, left in the judicial dust. But ironically, such a result could rebound to his benefit. A politically infected court could produce a politically unexpected result that would confound the conventional punditry, strengthening him and weakening Romney and the Republicans.
First, voters who hate Obama and Obamacare — and sadly in our riven politics, hate is the right word — were never going to vote for him anyway.
Second, Americans in the grey zone of doubt about health reform, confused by the fog of lies about the bill, would move on and vote, as they mostly would anyway, on a basis of other issues like the economy, the manifest hollowness of Mitt Romney, the profound unfairness of his priorities, and the job-destroying nature of his record and his economic plan.
Third, the Democratic base and women would rally to Obama because they would understand more plainly than ever the threat of a Republican president packing the Supreme Court with more injustices hostile to reproductive rights, to equality for minorities and gay Americans, and to essential protections for the environment and workers on the job.
Fourth, the aftermath would also engage those who would lose out if the law is swept away, especially young people no longer covered by their parents' insurance. This is a critical voting bloc for Obama — and what happens to them and other losers from an adverse court decision points to a final political consequence which would squeeze the GOP.
So far, Republicans have been able to demagogue health reform without providing any real plan of their own. Yes, they have the hobby horse of medical savings accounts, which are a transparent subterfuge to channel more money to the well off, not more health coverage to the sick and ordinary Americans. Romney and his party would have to say something more, but they have nothing coherent to offer. Their only useful idea was the individual mandate. They have trashed it — and Romney was not only for it before he was against it, but enacted it in Massachusetts.
The politics here is one thing, the fate of ObamaCare another. But what hangs in the balance may be even more — the character of America itself and the very possibilities of national purpose. On the last day of the Supreme Court argument, to most observers' surprise, another risk emerged. The uber-conservatives and the more "moderate" Roberts seemed ready to entertain the idea that Washington could not attach conditions to federal funds sent to the states — in this case, for Medicaid. The pretext was the Tenth Amendment — which reserved unenumerated powers to the "States... or to the people," and which was modified into apparent insignificance when the Fourteenth Amendment applied the Bill of Rights across both state and federal law. Since then, the Tenth Amendment has been largely an empty formula — and more recently the pet rock of states-righters. To invoke it now, to prohibit federal requirements for Medicaid grants — which the states, after all, can turn down — could shred the social safety net and the architecture of social endeavor.
For beyond Medicare, the court could rule that measures from aid to education to transportation investment, anything which calls for state matching funds and adherence to federal standards, has to be transformed, in effect, into block grants for states to spend as they wish. Imagine the untender mercies of the Mississippi legislature or governors like Wisconsin's Scott Walker toward needy seniors in nursing homes or toward the unemployed — and the list could go on and on. A Tea Party Supreme Court could rescind much of the last century, of the New Deal and the Great Society, and even initiatives like the second Bush's "No Child Left Behind."
I hope my pessimism about a right-wing revolution dressed in judicial robes will be proved wrong — that this court will not hazard generations of progress by re-engineering a Constitution which conservatives claim to cherish, but which, having lost the great debates of recent history, they may now misuse as a blunt force excuse to ordain their crabbed conception of governance. I hope that John Roberts, who at President Obama's swearing-in couldn't remember the Oath of Office, at least remembers his own — that his comments from the bench were meant to be provocative, not precursors to a reign of error.
I even dare to hope for the survival of the individual mandate. Surely Anthony Kennedy can find and articulate the obvious difference between a federal command for everyone to eat broccoli, one of the puerile hypotheses cited during the argument — and a health insurance mandate that is fitting and proper to the congressional jurisdiction over interstate commerce because what is involved here is one-sixth of the American economy. That would be the right decision, not the right-wing one.
I hope for this, but I fear the alternative, a decision that would live in infamy — that would not only deprive millions of health care, but launch a de-evolution back to the grim days when the Supreme Court in 1918 struck down a child labor law with a rigidly narrow reading of the Commerce Clause.
In a second term, Barack Obama, if he has the chance to appoint new justices, could prevent a new era of reaction. Perhaps the GOP presidential candidates are right about the boilerplate echoing off the walls at their rallies — that this is "the most important election of our lifetime." And unless they draw back from the brink, a slim Republican majority on a debased Supreme Court will help Obama win it.