If the Supreme Court invalidates all or parts of Obamacare, it will raise a question for the President and his advisers: How aggressively should Obama campaign against the Court as the general election heats up?
Between the nixing of Obamacare, should it happen, and the Citizens United decision, which Obama strongly opposes, you’d think the President would respond by casting the Supreme Court as a leading villain. He could hammer the Court as another symbol of the way the GOP, beholden to special interests, has consistently frustrated reform and stacked the system against ordinary Americans.
But don’t expect Obama to launch a full-blown campaign against the Court. Instead, expect a more subtle case: The decision againt Obamacare highlights the power the Court has over American life — and how much more power the conservative bloc would have if Romney were elected and replaced one or more liberal Justices.
Obama’s current situation is often compared to that of Franklin Delano Roosevelt, who saw several New Deal initiatives struck down by the High Court. But though Roosevelt did try and fail to stack the Court in his favor, he actually didn’t wage an aggressive public campaign against the Court during the 1936 reelection campaign, according to Jeff Shesol, the author of “Supreme Power,” a book about Roosevelt and the Court.
Roosevelt did have sharp words for the Court after it struck down one major initiative, but they provoked a huge backlash from the right, and he subsequently kept quiet about it, before launching a surprise attack in the form of his court-packing scheme after reelection.
Shesol predicts that Obama will refrain from direct assaults on the Court in the wake of Obamacare being struck down. “The argument the right has been making is that Obama attempted a wild unconstitutional overreach, and the Court will have just validated this view,” Shesol tells me. “To get out there and attack the Supreme Court gives Republicans an opportunity to stay on the side of the Court and the Constitution.”
What’s more, there’s little indication in Obama’s career or public statements that he has any appetite for Supreme Court reform.
All that said, Obama will likely point to the Court’s decision to strengthen his case against Romney. The polling on repeal is mixed — while one recent poll found support for striking down the mandate, others have found little support for repeal of the whole law. So it’s unclear how the public will react if the Court’s decision ends up doing away with the law — and if the reaction is negative, Obama can perhaps use it to his advantage.
Obama can argue that in the next four years, one of the liberals could retire, and get replaced by President Romney, which would mean the Court’s “deck will be stacked for a generation” in favor of conservatives, Shesol points out. “That will be a powerful argument .”
So expect Obama to strike an important balancing act: He’ll refrain from directly attacking the Court, while drawing attention to what the Court’s action reveals about just high the stakes of the election really are.