Politicizing SCOTUS

I truly have no idea what the SCOTUS decision on health care reform will be. We all know what Scalia, Thomas and Alito will do. But this decision isn't up to them any more than it will be up to Ginsburg or Sotomayor or Kagan or Breyer. What we're all waiting to find out is which way Justice Kennedy will go and whether or not he'll take Roberts with him.

Of course a lot of people are assuming the decision will be a bad one for Democrats. I think that alone is proof of what Jonathan Chait called our tendency towards despair. If we had an ounce of awareness we'd be out doing what President Obama did right after the oral arguments...suggesting that its inconceivable that SCOTUS would find this legislation unconstitutional.

I’m confident that this will be upheld because it should be upheld. That’s not just my opinion; that’s the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who have examined this law, even if they’re not particularly sympathetic to this particular piece of legislation or my presidency.

What's interesting is that most of these same folks who have been wallowing in defeat for months now, are busy calling for President Obama and Democrats to scream bloody murder when it happens. Here's Michael Tomasky doing just that.

I expect, as I think most of us do, an unfriendly decision (from the Democratic point of view) on the health-care law. Can’t yet say how unfriendly; at the very least, an overturning of the individual mandate, and maybe more. 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.

See what he did there...predict defeat and then suggest that when it happens, Democrats should come out swinging at the Supreme Court. He then goes on to suggest how we should make SCOTUS an issue in this election.

Based on my observations of President Obama for over 4 years, I will predict that this is exactly what he will NOT do. Here's why.

The very thing that's wrong in our politics these days is the polarization of the last shreds of what used to bring us together...media, educational institutions, religion, and yes, even the Supreme Court. That has been the game plan of conservatives from the get-go. Its why Faux News exists. If they can convince enough people that this is a "he said/she said" kind of argument, we are forever divided along those lines.

Since he first appeared on the national scene, this - more than anything else - is what President Obama wanted to change.



And so the last thing I expect from him is an attempt to politicize the Supreme Court by making it an issue in this election.

What I do expect is that, if the mandate or anything else in ACA is ruled unconstitutional, he will get to work doing what needs to be done to ensure the benefits of this legislation are preserved. In other words, he'll keep his eye on his North Star - which is to fight for what is best for the American people.

That's what most people say they want in a President. And that's what we've got right now.