If you think back to the 2008 campaign, Axelrod was slowly building this permission structure around Obama. Right before Super Tuesday, Axelrod rolled out the endorsements of Ted and Caroline Kennedy. Right before the election, he rolled out Colin Powell. The timing and nature of the endorsements were meant to make an African American candidate with an international upbringing and the name Barack Hussein Obama into someone that Ohio steelworkers could feel comfortable voting for. If Ted Kennedy and Colin Powell can back this guy, so can you.
But permission structures aren’t just for elections. Over the past two years, the Republican Party has slowly been building a permission structure for the five Republicans on the Supreme Court to feel comfortable doing something nobody thought they could do: Violate the existing understanding of the commerce clause and, in perhaps the most significant moment of judicial activism since the New Deal, overturn either all or part of the Affordable Care Act.
The first step was perhaps the hardest: The Republican Party had to take an official and unanimous stand against the constitutionality of the individual mandate. Typically, it’s not that difficult for the opposition party to oppose the least popular element in the majority party’s signature initiative. But the individual mandate was a policy idea Republicans had thought of in the late 1980s and supported for two decades. They had to, in effect, persuade every Republican to say that the policy they had been supporting was an unconstitutional assault on liberty.
They succeeded. In December 2009, every Senate Republican voted to call the individual mandate unconstitutional. They did this even though a number of them had their names on bills that included an individual mandate.
The unity among Senate Republicans reflected a unity among all the institutions associated with the Republican Party. Fox News and right-wing talk radio pushed the idea that the mandate was unconstitutional. Republican attorneys general began pushing the idea that the individual mandate was unconstitutional. Conservative think tanks — including the Heritage Foundation, which arguably brought the mandate to Washington and the Republican Party in 1989 — began releasing a steady stream of material arguing that the mandate was unconstitutional. Conservative legal scholars began developing arguments showing that the individual mandate was unconstitutional. Within a matter of months, the fact that the individual mandate was unconstitutional was as much a part of Republican Party dogma as “no new taxes.”
All of this forced the controversy over the individual mandate into the mainstream media, too. After all, if one of America’s two major political parties thinks the most significant health reform since Medicare is unconstitutional, well, that’s a story!
With the Republican Party on board, the news media interested and the public confused, the next step was the legal system. Conservatives filed 26 cases against the Affordable Care Act, ensuring that they would get a hearing in dozens of district courts. Judge Henry Hudson, a Republican appointee who was heavily invested in a Republican consulting firm called Campaign Solutions, was the first to rule against the law. Judge Roger Vinson, another Republican appointee, backed him up. In a pattern that would be repeated over and over again as the law proceeded through the court system, Vinson and Hudson’s rulings got vastly more media attention than the much larger number of instances in which district judges ruled for the bill or threw the challenges out of court. The result? Polls began showing a majority of Americans thought the mandate was unconstitutional.
The effort had setbacks, too. On the appellate level, two of the brightest stars in the conservative legal firmament ruled in the law’s favor. Orin Kerr, a law professor at George Washington University and a former clerk for Justice Anthony Kennedy, told me, “the two top choices for Supreme Court picks on the Republican side are probably Brett Kavanaugh and Jeff Sutton. Sutton voted to uphold the mandate on the merits and Kavanaugh voted to say it was not justiciable.” Judge Sutton, by the way, is a former clerk for Justice Antonin Scalia.
But those setbacks were nothing compared with the luck Republicans had during the oral arguments before the Supreme Court. Paul Clement, the talented lawyer prosecuting the case against the Affordable Care Act, gave what most everyone agreed was the performance of his career. Don Verrilli, the solicitor general of the United States, gave what most everyone agreed was one of the worst performances of his. He began by choking on water and seemed to never quite recover his composure. “He was passive. He was stumbling. He was nervous,” CNN legal analyst Jeffrey Toobin told Politico. “I was just shocked.”
For all the Republican Party had done to make the mandate’s constitutionality a live issue, the oral arguments gave their cause a credibility that strategic positioning couldn’t buy. The two arguments had met in front of the Supreme Court and the argument against the mandate’s constitutionality had clearly won. Everything up until that point could have been written off as conservatives convincing conservatives of something conservatives already wanted to believe. But on that day, the argument against the individual mandate met the argument for the individual mandate, and the argument against it won — even in the eyes of the mandate’s supporters.
After that, confidence that the mandate would survive the court collapsed. A poll of former Supreme Court clerks taken before the oral arguments found that only 35 percent thought the court would overturn the mandate. After the oral arguments, that rocketed up to 57 percent. A poll of top constitutional law scholars found that 19 of 21 thought the mandate was constitutional, but only eight were confident that the Supreme Court would uphold it. InTrade, a political betting market, puts a 67 percent chance on the mandate being overturned.
What the conservative movement has done — with a big assist from Verrilli — is build a permission structure that would permit the Republican appointees to the Supreme Court to rule against the individual mandate. They had taken a legal campaign initially dismissed as a bitter and quixotic effort based on a radical and discredited reading of the commerce clause and given it sufficient third-party authentication to succeed. If the Supreme Court rules against the mandate, it will no longer be out on a ledge. It will be in lock step with the entire Republican Party, many polls, a number of judges, the impression the public has gotten from the media coverage and the outcome of the oral arguments.
And that’s what has changed from two years ago. When this campaign began, it was unthinkable that the Supreme Court would indulge it, even if some on the Supreme Court were sympathetic to its aims. “There is a less than 1 percent chance that the courts will invalidate the individual mandate,” Kerr said at the time. Today, it’s entirely thinkable that the Supreme Court will indulge it, and that means that the members of the Supreme Court, who care deeply about protecting their institution’s legitimacy, are free to rule in whichever direction they want. We’ll find out what direction that is on Thursday.