The debate begins with the claim made by many (Silver cites Mark Penn, Bob Shrum, and James Carville as just a few) that, if the Supreme Court strikes down Obamacare, it will actually be a good thing politically for the President because he can rail against an activist Supreme Court and rally his base. There are some subtle nuances to the differing arguments but that's the basic theme of them.
Silver says there are three basic problems with this argument:
1. Mr. Obama does not face a major problem with his base, but his standing is tenuous with swing voters.From there, Silver goes on to provide data to support these three points and he concludes
2. Among swing voters, the health care bill is not very popular.
3. The Supreme Court declaring the health care bill unconstitutional will not make it more popular among swing voters.
the argument that the bill being struck down would actually help Mr. Obama seems to have little grounding in the evidence — nor, frankly, in common sense. Among the voters that are most critical to Mr. Obama’s re-election prospects, the Supreme Court is more popular than the health care bill. If the justices declare one of the president’s signature accomplishments to be unconstitutional, it would not be a boon to him.I don't think I want to go so far as to say the Court striking Obamacare down would be a "boon" but I do think there is some upside and I think Silver is wrong when he says that the claims of Penn, Shrum, and Carville defy common sense.
The evidence Silver provides for his "basic problems" with the argument is solid so let's stipulate all those things. But there are some logical problems with the argument he's making. First, it assumes public opinion on all these things including public opinion on the Court, is fixed. It is not and part of the argument being advanced by Penn, Shrum, and Carville is that the Court is over-stepping and that Obama will have the opportunity to make that case. Indeed, the President just warned the Court on this exact thing yesterday:
I can assure you these were not off-the-cuff remarks. This was a planned response and it was Obama firing a shot across the Court's bow and letting them know what they can expect to see from him in the Summer and Fall if they strike Obamacare down.
The larger point I want to make about why Silver is wrong has to do with Obama's campaign narrative and the way the Court striking down Obamacare would fit into it. The President has pretty much outlined his campaign message. He did so in Kansas a couple of months ago and he is outlining it again this afternoon in his criticism of the Ryan Budget. Obama is going to argue he's on the side of the middle class and the little guy and Romney is on the side of "fat cats" and Wall Street.
This message seamlessly transplants itself into the debate over health care reform if the Court strikes it down. The 5-person majority that would strike it down (and it won't be more than that as Ginsburg, Breyer, Sotomayor, and Kagan seem to be solidly against striking it down) would be made up of 5 unelected conservative justices who will have gone out of their way to take health insurance away from middle class and poor people who have either already gotten health care because of this law or who would get health care under this law. The public does not know these justices and the public does not understand how the Court operates. Indeed, the justices purposefully avoid the spotlight even when landmark cases reach their chambers. It will not be hard for Obama to paint the conservative majority on the Court as akin to the shadowy Wall Street figures donating massive amounts to the campaign against him. The President can also subtly equate the impenetrable processes of the Court with the impenetrable processes and financial instruments of Wall Street. "Hey, how did Mitt Romney make all that money anyway?!?"
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