Speaking to a legal conference Friday night in Washington, the oldest member of the high court offered tantalizing hints about where the court may be heading in coming days."The term has been more than usually taxing, some have called it the term of the century," she said in remarks at the American Constitution Society's annual review of the court. The ACS is a left-leaning legal advocacy and scholarship group.
Some of those watching Ginsburg's speech noted her remarks regarding the power of dissents issued by the high court, and whether she was signaling how Congress might follow up to however the health care cases are decided.
"I have spoken on more than one occasion about the utility of dissenting opinions, noting in particular that they can reach audiences outside the court and can propel legislative or executive change," she said.
There are a few different paths that the Supreme Court could take on the case. The "cleanest" would be either upholding or striking down the entirety of the law. However, they could also rule the mandate alone unconstitutional - and they could also delay a real ruling on the issue of anti-injunction.
Health care will once again become an incredibly important issue if the Court strikes down just the mandate. That would leave the United States with a system that forces insurance companies to charge all customers equally and would be barred from turning anyone down. This would result in a death spiral - only those who are sick would bother buying insurance.
As Adam Serwer wrote, striking down the mandate "would also, administration officials fear, bankrupt the insurance companies still forced to provide coverage without the necessary financial resources to do so. (Without a mandate, the insurance industry will have fewer customers and less resources to handle an influx of those people with preexisting conditions.)" In the fevered dream of progressives, this would pave the way for a single-payer universal health care system, similar to the United Kingdom. That's highly unlikely.
In any case, the White House is not tipping their hand. Democrats are complaining that they haven't been privy to Obama's plans should the Supreme Court strike down Obamacare.
“There have been no plans, no meetings, nothing that I know of,” said Sen. Tom Harkin (D-Iowa), chairman of the Health, Education, Labor and Pensions Committee. “I’ve done my own internal work on that as chair of the HELP Committee to think about the different kinds of decisions. But since we have no idea what they’re going to decide, how can you plan for it?”By contrast, Republicans have engaged in a wide range of game planning and are scheduling a series of anti-“Obamacare” votes the second week of July to react to the Supreme Court ruling. In the Senate, all 47 Republicans have been equipped with talking points on the Supreme Court decision.
This could be yet another case of Democrats prematurely assuming that they won't lose - as was the case in the weeks and months leading up to the Supreme Court hearings. If Obamacare gets struck down and the Democrats aren't prepared, Obama is going to be up a creek without a paddle.
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