Obamacare and the Supreme Court expectations game

at 06:30 AM ET, 03/28/2012

Expectations are a funny thing.


A supporter of President Barack Obama's health care reforms (R) argues with several elderly women who are against the reforms in front of the U.S. Supreme Court on Tuesday. (KAREN BLEIER/AFP/Getty Images)
Heading into Tuesday’s oral arguments on President Obama’s health care law at the Supreme Court, supporters of the measure were brimming with confidence about the likelihood it would be found constitutional.

Twelve hours later, that confidence was shattered amid a less-than-stellar performance by the solicitor general (the government’s head lawyer) and a series of questions from the justices — including swing vote Anthony Kennedy — that seemed to suggest they were not favorably disposed to the law.

“This law looks like it’s going to be struck down,” said CNN legal analyst Jeffrey Toobin after Tuesday’s oral arguments. “All of the predictions, including mine, that the justices would not have a problem with this law were wrong.”

Toobin was far from the only one to offer a gloomy analysis of the future prospects of Obamacare. NBC correspondent Pete Williams said it was “very doubtful” that the court would uphold the constitutionality of the law. The Post’s own Ezra Klein wrote a post headlined “A bad day for Obamacare supporters”. Heck, even the InTrade odds of the law being found unconstitutional soared to 57 percent — a high — late Tuesday.

Barring some sort of major reversal in today’s third and final day of oral arguments before the court, the conventional wisdom between now and a verdict is announced by late June will be that the law’s chances of being overturned outpace its chances of being upheld.

What does that mean in terms of the fallout once a verdict is actually announced?

The low expectations for the court to uphold the law do two things: First, they make overturning it less potentially powerful as the coverage over the next several months will paint that outcome as a foregone conclusion, and two, they make a victory for Obamacare allies that much bigger if it happens to come to pass. (There are few better storylines than the overturning of expectations.)

Need a lesson in how much expectations matter? A month ago, no one thought former Massachusetts governor Mitt Romney had a snowball’s chance of winning the Mississippi primary. But as the March 13 primary drew closer, Romneyworld began to signal that they might just have a chance to win in the Magnolia State.

That raising of expectations made the primary matter, and made Romney’s loss to former Pennsylvania senator Rick Santorum far more meaningful than it might have been if Romney had ignored the state (as he did in Louisiana last Saturday).

Even the most pessimistic analysts in the wake of Tuesday’s oral arguments were careful to couch their assessments with the fact that oral arguments does not a verdict make, and that no one truly knows how the court will decide until it, well, decides.

Make no mistake: Tuesday was not a good day for supporters of Obamacare. But, if there was a silver lining in the proceedings, it’s that the expectations for victory are now so low that any bone the court throws to supporters in late June will be touted as a victory against the odds.

The Gingrich shakeup: It came as little surprise late Tuesday when news broke that Newt Gingrich’s campaign was cutting about one-third of its staff and had replaced its campaign manager.

Gingrich has been struggling for a long time now and missed his chance to put together a win streak the last couple weeks during primaries in Alabama, Mississippi and Louisiana.

In addition, he doesn’t really have the kind of funds required to run a full-throated campaign; his most recent financial filing showed more debt than cash on hand.

Instead, Gingrich will run a campaign with less of a travel schedule and focus on attracting voters through the media and the internet.

But at this point, what he really needs are some debates — something he’s not going to get.

Fixbits:

Public Policy Polling shows Romney and Santorum tied in North Carolina, whose primary is May 8.

Romney and Jay Leno talk porn and vice presidents. Romney also suggests Santorum should be his press secretary.

Gingrich has been reduced to charging $50 for snapping a photo with the candidate.

Sen. John McCain (R-Ariz.), the author of campaign finance regulations that were undone by the Citizens United Supreme Court decision, says that decision will lead to “major scandals.”

The National Organization for Marriage’s internal memos show a strategy focused on dividing African-Americans and gays.

A new poll in Michigan shows former congressman Pete Hoekstra (R) within 5 percent of Sen. Debbie Stabenow (D).

Rasmussen Reports shows Ohio state Treasurer Josh Mandel (R) pulling even with Sen. Sherrod Brown (D-Ohio), but most other polling has shown Brown up significantly.

2010 Connecticut GOP Senate nominee Linda McMahon releases a poll showing her leading former congressman Chris Shays in the 2012 primary by 21 points.

House Democrats release their budget.

The Etch A Sketch attacks make their way into a House campaign in Colorado.

Must-reads:

Rick Santorum’s nice-guy persona is turning a bit testy lately” — Sandhya Somashekhar, Washington Post

Mitt Romney’s 81 Lifelines” — Stephanie Palla, Tim Alberta and Reid Wilson, National Journal

Romney’s fundraisers are quietly amassing millions” — Richard Lardner, AP

In Massachusetts, Insurance Mandate Stirs Some Dissent” — Abby Goodnough, New York Times

Obama open mike flap hits Hill and campaign trail” — Nia-Malika Henderson and David Nakamura, Washington Post

 
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