In the days and weeks preceding oral argument before the Supreme Court on ObamaCare, all Democrat (politicians and pundits) and a surprising number of conservatives were convinced that the Supreme Court would sustain ObamaCare. After two and a half days of argument, the conventional wisdom has suddenly shifted. Democrats are sure they’ll lose, and conservatives are cautiously optimistic.
With this radical shift, something else has happened: Democrats are boasting, and conservatives are worrying, that a Supreme Court loss is the best thing that could happen to the Democrats. Both claim that if the mandate alone goes, the remainder of ObamaCare will survive and be better than ever; and both also claim that if the entire bill goes down, ObamaCare’s loss will reinvigorate the base in November, while possible ensuing chaos in the health care world will so frighten ordinary Americans that they’ll demand a big government solution.
The Democrats’ spin make sense. It’s all they can do. The conservatives’ spin is less easy to understand. Are conservatives guarding against hubris? Is this a case of “hope for the worst, but plan for the best”? Our we overestimating the Obama-ite’s tactical brilliance? The last is intriguing, actually. The theory goes that Obama and Co. decided that they could make more hay out of a loss than a victory, so they actually encouraged the Solicitor General to humiliate himself and basically appear like an articulate idiot. They want to lose, because it sets them up for some even more nefarious plan.
There is such a thing as over-thinking things. Under the above world view, it is impossible for conservatives to win. If we lose before the Supreme Court, we lose. If we win before the Supreme Court, we lose. This is an unsustainable mindset. You have to fight your battles as they come. It is possible to win most of the battles and lose the war, but it’s more likely that the party with the greatest number of victories in separate battles also wins the war. The one thing that’s certain is that, if you lose all the battles, you also lose the war.
I have been over-thinking something myself. As jj noted in his comment to an earlier post, it is unconscionable that Elena Kagan is one of the sitting justices for this ObamaCare decision. She was an important part of its passage, not to mention an ardent cheerleader. Each of these facts creates an overwhelming appearance of bias and impropriety that, with nothing more, should force a judge’s recusal. Yet Kagan didn’t recuse herself and, it seems, Chief Justice Roberts didn’t push the issue.
I’m wondering if they struck a deal….
Roberts must have realized that Obama’s base would become something close to insane, and probably violently so, if Kagan was knocked off this panel. Perhaps he said to her something along the lines of, “You can stay, and you can help them out in oral argument, but you vote with me when the time comes.” His role as Chief Justice means that he has considerable power to make Kagan’s Supreme Court tenure pleasant or unpleasant. I can imagine him using a little polite blackmail.
Speaking Roberts, in my humble estimation, he has been the best Chief Justice in my remembered lifetime. I have a great deal of faith in his management skills and, if he believes ObamaCare should be struck down in its entirety, I can see him making it happen — especially when it comes to encouraging Justice Kennedy to make the right decision. (And jj, you’re right about that too, which is that it’s unconscionable that a man of very weak principles, although he does seem to side with individual liberties, is the one who seems to bear the whole burden of upholding the Constitution’s integrity.)