If Obamacare is struck down, the court loses

IF THE US Supreme Court strikes down Obamacare, there will be one big loser. No, not Barack Obama. Nor Congress. It will be the high court itself.

This was a case many thought the government would win relatively easily, based both on a landmark 1942 precedent and on a 2005 case whose six-vote majority included Antonin Scalia and Anthony Kennedy.

But judging from Wednesday’s arguments and exchanges, the court’s conservative judicial activists are much less likely to take a traditionally broad and deferential view of Congress’s Commerce Clause powers in this matter.


Of the four Republican-appointed justices who spoke, everyone but Kennedy seemed sharply predisposed against the law, precedent notwithstanding. That was particularly true of Scalia. As they test ideas and probe principles, justices frequently reason by analogy. But by comparing the individual mandate at the heart of Obamacare to the government forcing people to join a health club or to buy broccoli or to purchase cars, Scalia displayed an astonishing intellectual imprecision.

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That kind of “reasoning’’ doesn’t reflect ratiocination; it shows reflexive rejectionism. That said, Samuel Alito’s likening the mandate to making people get burial insurance, and Chief Justice John Roberts suggestion that it was akin to forcing them to buy cell phones, the better to facilitate emergency services, were almost as wide of the mark.

There’s a reason no one could find an apt analogy: The situation with health care, which hospitals can’t withhold but which the uninsured often don’t pay for, thereby increasing premiums for those who are insured, is unique. And despite Scalia’s suggestion that health care providers could stop treating those unable to pay, that isn’t a practical - or moral - suggestion. Nor, for that matter, is the notion that one could sign up for insurance at the time of treatment. (Imagine that process in an emergency room!) A policy issued under those circumstances wouldn’t be insurance so much as a payment plan for medical services about to be rendered. And if one couldn’t afford them outright, how could he afford a policy written to recoup their cost?

But though respected constitutional scholars didn’t previously think the individual mandate was in real jeopardy, the best-case scenario for the law now seems like a 5-4 vote in its favor. In the worst case, the five GOP-appointed justices will vote against the mandate, with only the four appointed by Democrats in favor.

The first result would leave the law on less solid ground than precedent suggests it deserves. The second would make it apparent that the partisan fracture that runs through so much of American politics afflicts the court as well - and the reputation of the court as disinterested arbiter would suffer another serious blow.


Yet the notion that such a loss would cripple Obama’s chance of reelection simply doesn’t scan. Here’s why: Almost from the start, a majority of Americans, as many as two-thirds in some polls, have disapproved of the individual mandate. But most also have a measured view of it. How do we know? Because if a majority viewed it as a cross-the-Rubicon departure from constitutional government, Obama wouldn’t be leading in hypothetical general election match-ups.

He is, however. Indeed, three March polls - CNN, Pew, and Reuters - show him with a double-digit margin over both Mitt Romney and Rick Santorum; and though a recent ABC News-Washington Post poll has Obama and Romney basically tied, it also finds that Obama’s favorability rating is 19 percentage points higher than Romney’s.

Now, on some issues, one could say, well, that simply means that voters have yet to focus on this. Not so the individual mandate. It’s hard to think of a public-policy matter that has gotten more attention, much of it unfavorable.

If it’s struck down, those who oppose both the mandate and Obama will claim vindication. Those favor both will blame the Republican-appointed justices. And those who oppose the mandate but nevertheless like Obama will have one of their concerns mollified.

But regardless of whether one likes, loathes, or is lukewarm about the mandate, it’s hard to see an unfavorable court verdict fundamentally changing how Americans feel about the incumbent.

Scot Lehigh is a Globe columnist. He can be reached at lehigh@globe.com.