Like some others, my initial reaction to the 5-4 decision upholding the Affordable Care Act was about the slender thread by which even a semblance of democracy now hangs — the radical-right dissenters (now including former “centrist” Anthony Kennedy) made clear that they would act based solely on politics to overturn the entire law, and probably would have sought to invalidate Barack Obama’s election in 2008 and maybe a Super Bowl result or two if they could have found a decent excuse. Even if Chief Justice John Roberts blinked this time at the prospect of announcing a de facto judicial coup, as Kevin Drum and others have noted, we can’t expect to be so lucky in the future.
That bleak note aside, I was intrigued by the political assertiveness some observers saw in President Obama’s post-decision statement from the White House, a humanely grounded defense of the ACA that David Dayen here headlined “Obama Creates Teachable Moment” and the legendary Charles Pierce described as “The Progressive President Speaks Out“, saying:
The popular opinion among the pundits is that the president should now walk softly on this issue, or that the issue will fade as the campaign rolls on. I think that would be as big a mistake as his pulling back in the face of the manufactured outrage of 2010 was. The president should talk about this every day.
I expect Obama will continue to make the healthcare bill an issue on the campaign trail — because, contrary to Jon Walker, I think further debate on this plays out well for him. On the one hand, he can promote awareness of the bill’s benefits, which are more tangible now (or at least closer to becoming real) than they were in 2010. On the other, as he did yesterday morning, Obama can position himself as a determined fighter for ordinary people even when the political tides are against him. (Even if it seems implausible to progressives who’ve seen him abandon that fight too often, it’s probably a better tactic than talking about the economy, right?)
But more than anything else, I’m struck by what might have inspired this populist pugnacity in the president… was it because he shared the common perception that the law would be struck down? Did he face the possibility that he’d have to justify to the public why he’d spent so much time and energy on the ACA, not to mention find a rallying cry after being legislatively emasculated by the Supreme Court? Was it, once again, an example of Obama discovering that progressivism is his best political option, only after exhausting every other alternative?
If so, I hope the lesson sticks a bit better this time, and that he spends the rest of 2012 — and his second term, if he gets one — acting like he lost at the Supreme Court on Thursday.