Assuming that’s correct, the question immediately becomes how the president and the Democrats should respond. There’s very little they can do legislatively. But I’ll be watching for rhetoric, tone, even body language. And on those counts, they had damn well better dispense with the usual liberal woe-is-me hand-wringing and shoulder slumping and come out swinging. They had better communicate to their base that they stand for something, it’s important to them, and they’re pissed. And if they do it the right way, they can make the Supreme Court an issue this fall in a way that might even persuade some swing voters that the court overstepped its bounds. I’d go so far as to say that an aggressive response can reset and reframe the whole health-care debate, once Americans have had their minds focused on this by a blatantly partisan court.
Let’s say the court overturns the mandate by a typical 5-4 vote, but leaves the rest of the law intact. What must the Democrats do? The main thing is all about tone. I can just picture already what I fear I will see: Obama coming out to a press conference with his head down, speaking in a dour monotone, still trying to point out the silver linings but in a way that sends the message to anyone listening that he’s really apologizing for them, and muttering that he is now “calling on the Congress to act” (this has become my least favorite Obama phrase) and get busy working on one of the alternative approaches that will still keep the law alive—which is nothing more than a punchline, really, because everybody knows Congress isn’t lifting a finger.
No, a thousand times no! He needs to stand up there and get mad. The law may be unpopular, but he and the Democrats are stuck with it, and being stuck with it, they need to stick by it. Almost never before in American history has a Supreme Court taken a law duly passed by the people’s representatives and in just two years’ time invalidated it. If that isn’t legislating from the bench, what is? Mr. Cool needs to get Hot. Against unanimous and ferocious opposition, and in the face of blatant lies about what this bill would and would not do, he and the Democrats came up with a way for people with cancer and diabetes and what have you to get the treatment they need and not be either turned away or gouged. He’s proud of that, he ought to say, and by God, he’s going to fight for it. That provision of the law is wildly popular—85 percent supported that, in a late-March New York Times survey. If you can’t play offense with 85 percent of the people behind you, I give up.
He should also go right at Mitt Romney, on two points. First, Romney flatly opposes coverage for all people with preexisting conditions. He backs care only for those who have had “continuous coverage,” and not for people whose insurance had lapsed at any point during their illness. So Romney is against something 85 percent of Americans support. I am sadly confident that you did not know that. Good work, Democrats.
Second: when Romney was governor, he supported—insisted on—exactly the same provision that the court will have just struck down. The people of Massachusetts were forced to buy insurance. They live under that regime today, thanks to Governor Romney. And guess what? They like it—62 percent approved of the law, in a poll from earlier this year. And now, to please far-right interests putting hundreds of millions of dollars into his campaign, he would deny the people of the country the one good thing he did for the people of Massachusetts as their governor.
Now we come to the court itself. Far be it from me to second-guess Jeff Shesol, who wrote in Newsweek that Obama should not take on the court. But a brand-new poll by Hart Research for the Alliance for Justice suggests that with the right approach, the court can be made an issue. In the case that I suggested at the top of this column—a 5-4 decision along the usual lines—69 percent of Democrats and 57 percent of independents agreed that “they would believe that the justices based their decisions more on their own political views than on their interpretation of the law and Constitution.” Fifty-seven is not an overwhelming majority. But it’s a majority nonetheless, and if Democrats aren’t afraid to make this case strongly, they can turn it into an even bigger one.
In sum, the Democrats should see an adverse decision as a chance to put the other guys—the Republicans in Congress, Romney, and the court’s ideological majority—on the defensive. It is what Republicans would do; they’d bay endlessly about an “out of control” court and all the rest. It’s one of the key psychological differences between conservatives and liberals. When conservatives suffer a political setback, they prowl the terrain like lions, looking for a few necks to bite. When liberals suffer one, they ball up like kittens and ask themselves, “Oh, gee, what did we do wrong?”
That impulse, not any particular talking point, has been the whole problem on this health-care debate to begin with. As it is on so many matters. Maybe John Roberts and his little quartet of sea-green incorruptibles will finally get it through their heads.