Now that the arguments before the U.S. Supreme Court are over, it’s time for some hard-headed analysis.
The first thing that is clear is that all the liberal analysts who convinced themselves that one of the so-called conservative bloc was going to go over to the other side and endorse the individual mandate.
Nothing, as the questioning by the Justices appears to have demonstrated, could have been further from the truth. The only thing that could have made it clearer that the mandate was going down and going down hard was if Justice Clarence Thomas had asked something along the line of “Seriously, dude?”
That didn’t happen, obviously. But here’s what likely did.
What had to be crystal clear to the liberal wing of the court, and has to have been for some time, was the mandate had the life expectancy of a pork chop at a southern barbecue once the arguments began.
So the issue has never been, from the perspective of the four-member liberal wing of the court, how to preserve the mandate. Rather, the issue has been how to parlay a loss before the High Court into a serious policy victory, which is what all of this has been about. Oh, and a victory for President Obama at the polls in November.
First things first, there has been no conspiracy among the Justices, there needn’t be. They’re working the script without cue cards. As they have long known that the mandate was DOA, the question has been a political one.
If the mandate dies 5-4, the conventional wisdom is that the left becomes energized and the political right appeased, ergo a cruise to victory for the president.
Conventional wisdom is wrong. The right already is energized and won’t be satisfied with the mere death of the mandate. But what if the mandate dies 6-3?
In other words, what if Justice Sonia Sotomayor were to jump ship?
Sotomayor set the table for that when she questioned Solicitor General Donald Verrilli about whether the mandate threatened personal liberty. And Justice Sotomayor is hardly a tea partier.
What she was doing was engaging in hard-headed political calculation.
Sotomayor won’t mind killing the mandate because it’s not about the mandate. It’s about running health care.
By twisting a rhetorical dagger into the back of the mandate, but voting to uphold the rest of the Patient Protection and Affordable Care Act, the minority on the High Court dictates the terms of the election.
House Republicans want to eviscerate the law, but can’t do so, because the Senate and president won’t go along. They want to hang the GOP and Mitt Romney with a rope made with the strands of eliminating exclusion for pre-existing conditions, “saving” Medicare, hammering insurance companies and so on.
You get the drift. If the mandate is unconstitutional then the only way to provide those goodies is the way the president always wanted to go: single payer health care.
The gambit gives the progressives the bone they want so badly and splits the opposition over which goodies they want to keep.
If conservatives lose the election they’ll pin their hopes on the Supreme Court, but the next time around the court won’t be so hospitable. Neither side has questioned the ability of Congress to levy taxes, after all. It’s been all mandate, all the time, and the minority in this case is in it for the long haul.
So the deal goes down like this: Chief Justice John Roberts assigns the majority opinion to himself. He doesn’t get to decide who writes for the minority, but it doesn’t matter.
Sotomayor authors her own opinion partially concurring and partially dissenting.
Justice Elena Kagan, who engineered the argument during her days in the Obama solicitor’s office, authors the minority opinion full of half-baked justifications of the mandate that no one believes, just to tick off the tea party.
So how does the GOP counter this strategy?
Tune in next time….