Several people are calling the Supreme Court sessions on the Affordable Care Act the most important since Bush v. Gore. The case is certainly critically important to the fate of the law, and with it the future of health care, the federal budget, and perhaps the U.S. economy. But you know what’s not riding on the Court’s decision, despite plenty of hype? The 2012 election. The truth is that the decision in this case will likely have little or no effect on Obama v. Romney.
There are two reasons for this. First, most events have much less staying power than we expect they do. Even truly important events—take, for example, the September 11 attacks—fade. Of course, events can have lasting effects, including electoral impact, even after we stop being aware of them. But it’s not at all hard to find a half dozen or more events that are said to be election-changing when they happen, only to disappear without a trace months later. No, Barack Obama’s church didn’t wind up dominating the November 2008 election; nor did how many houses John McCain owned. Or, for a (slightly!) more substantive issue: Remember when everyone cared so much about the federal government’s credit rating? When was the last time that was mentioned? The Supreme Court will likely decide the fate of ACA in June, some five months before Election Day; there will be dozens of headlines between decision day and when voters go to the polls. Unless one of the candidates puts a lot of effort into keeping it in the news, it’s not going to be on people’s minds.
The second reason is just that the room for influencing the vote is much less than some believe. Most voters are partisans, and are going to vote on that basis (that includes those who say they are independent but lean to one party, who tend to behave just like weak partisans do). For swing voters, health care reform must compete with everything else: the economy, the death of bin Laden and the continuing war in Afghanistan, and whatever smaller issues affect them personally. Indeed, this was already visible among Republicans during the presidential nomination battle. If ACA was really a make-or-break priority, there’s no way that Mitt Romney would have emerged as the GOP pick. That’s not to say that people don’t care about it; it’s just that they care about it as a function of, say, disliking Barack Obama. For a large number of opponents, if it wasn’t health care, it would be something else.
Some people may, in fact, care enough about health care reform that it will affect their vote. But I’m even more skeptical of the idea that anyone cares about the Constitutional issues that the Court will be discussing. I can’t imagine there are more than a handful of people who basically support the ideas behind ACA but are reluctant to approve of the law—and thus support the president—unless it receives a SCOTUS seal of approval.
Of course, whatever people care about now, if a campaign highlights an issue in the fall then people will start to care about it then. That’s not unusual. Something that people normally wouldn’t care about at all can be far more salient because candidates talk about it—after all, Republicans who would never have been affected by the law themselves cared quite a bit about inheritance taxes over the last decade because Republican politicians talked about that tax all the time.
But the Court decision likely won’t affect the calculation of the campaigns. If Romney believes that he’ll be helped by calling ACA an unprecedented power grab, he won’t be prevented from doing that if the Justices decided it’s constitutional. If Barack Obama wants to brag about the popular bits of health care reform (and the individual mandate is certainly not one of those), then he’ll do so, regardless of what the Court thinks. That’s probably true even in the unlikely event that the entire ACA is thrown out, but it’s certainly true if the law is only partially tossed. Sometimes people will say that a candidate “can’t” argue something or another, but that’s almost never true. Just as Mitt Romney is perfectly capable of attacking Barack Obama for “Obamacare” despite the very similar law Romney passed in Massachusetts, Romney will be capable of still calling ACA an abuse of power even if the Court disagrees—and Obama will be capable of praising it even if the Court takes down major portions. That’s especially true if many of the more popular provisions would remain intact, such as phasing out the donut hole for Medicare drug prescriptions or keeping children on their parent’s insurance until they turn 26. And fortunately for the Obama campaign, barring the unlikely event that the Court strikes down the entire law, there should be several of those feel-good items that dodge the bullet.
The Supreme Court decision over health care reform will certainly be substantively important. Should the law survive, and should Barack Obama survive the 2012 election, then health care reform will actually be enacted. But don’t expect the Court’s decision to affect what happens in November—the justices’ power doesn’t extend to the voting booth.
Jonathan Bernstein blogs at A Plain Blog About Politics.