If, as widely forecast, the Supreme Court votes down Obamacare on Thursday with Anthony Kennedy as the deciding vote, President Obama will likely shift his campaign strategy directly against the Supreme Court – and Kennedy in particular.
So far, President Obama, recognizing the respect in which the Supreme Court is held, has edged away from directly attacking the Supreme Court – although he did attack the Court directly during his 2010 State of the Union address over their Citizens United decision, and he recently and idiotically said it would be “unprecedented” for the Supreme Court to strike down Obamacare. He has instead leveled his most direct criticisms at Congress, which he says is holding up his agenda.
All that may change if Obamacare loses in the Supreme Court. He won’t attack the institution as a whole. Instead, he’ll do something truly unprecedented: he’ll attack Justice Kennedy.
Kennedy is the second-oldest justice on the Court, at age 75; he was appointed by Ronald Reagan in 1988. There is a reasonable shot that Kennedy will retire during the next presidential term – although he could hang on until past his 80th birthday. Justice Ginsburg is 79 years old, and the Court’s most reliable liberal. She has been widely rumored to be suffering from health problems. And since Supreme Court appointments often become a ghoulish death watch, there is the possibility that she will step down within the next term as well.
That leaves the constituency of the Supreme Court very much up in the air. If Kennedy steps down under Mitt Romney, the Court could become a 5-4 conservative majority; if Ginsburg has to step down for health reasons, that majority could become a whopping 6-3. For the first time in a century, an originalist-minded Supreme Court could be ruling on cases.
And that will be President Obama’s pitch if Obamacare goes down in flames. He will argue that the only thing standing between the pitchfork-wielding anti-abortion folks and the huddled masses of pregnant women who simply want to visit Planned Parenthood is… Barack Hussein Obama. He will state that the days of the Civil Rights Act will be over unless he is re-elected. And because most Americans don’t understand Constitutional law (e.g. even if Roe is overturned, the issue of abortion then reverts to the states), they may be frightened into voting for him. The War on Women will merge with the War for the Court.
From that perspective, if Obamacare is indeed struck down, Obama may find himself in heady electoral territory. He can’t run on his record; he can’t run on his accomplishments. All he can run on is what he promises to do in his second term – and most of that is simply un-accomplishable. But what he can do is maintain the Court’s liberalism.