If the Supreme Court had overturned Obamacare, the public no doubt would have turned against the GOP for being too obstructionist, the GOP-led Supreme Court for being too judicially activist and presumptive GOP nominee Mitt Romney for flip-flopping on the individual mandate.
When the big bench upheld the Affordable Care Act, Team Obama won the glory. Republican-appointed Chief Justice John Roberts joined the court's four liberal justices; opinion writers praised him for his statesmanship. The New Yorker's Jeffrey Toobin, for example, saluted Roberts' "singular act of courage."
Likewise when Roberts and Justice Anthony Kennedy joined three Democratic-appointed justices to nullify three provisions of the Arizona immigration law.
When one of the four Democratic-appointed justices joined the five GOP justices in a decision -- but wait; that never happens in a big case. The Dem justices stuck together in favor of the Affordable Care Act, against Citizens United in Montana and in an opinion to strike down most of the Arizona immigration law.
When conservative justices stick together, they are rigid ideologues, party hacks or both. When liberal justices stick together, it's because they are true to their vaunted principles. All bow.
Republicans can't win. The former Massachusetts governor, the party's all-but-certain nominee, is the only Republican in the country who imposed a health care plan with an individual mandate on his state. Romney used to call the provision "the ultimate conservative idea," as it told citizens that they'd get government help only if they couldn't afford to take care of themselves. Team Obama is so smitten with Romney's past that White House aides often credit Romney with coming up with the template for Obamacare.
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In case you missed Romney's one-time embrace of the individual mandate, Justice Ruth Bader Ginsburg, a Clinton appointee, made note of that salient fact when she wrote in her concurring opinion that Massachusetts had "cracked the adverse selection problem" by requiring that most Bay State residents obtain insurance.
The worst part: Romney will be the GOP nominee because he was the best candidate in a crowded field. Romney was the heavyweight in the primaries.
Now, I believe that Romney can win in November. But if he does, it won't be so much a function of Romney as it will be a function of President Barack Obama. Many voters do not believe that Obama's government-centric approach to fixing the economy will work. They have little reason to believe that the Affordable Care Act actually will make health care more affordable.
Besides, Obama has spent the past year telling voters he can't pass vital legislation because Republicans are mean obstructionists. So why would voters re-elect a man who can't get things done?
That important question could be the one contest Republicans can win.
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