Opinion: Defeat of healthcare law would erode voters’ trust in Supreme Court

Every political strategist working the fall elections sees a game changer coming by the end of the month.

That’s when the Supreme Court rules on the constitutionality of President Obama’s signature legislative accomplishment, the Affordable Care Act.

The Democrats have a nuclear option in this political game if the high court throws out the healthcare law as unconstitutional.

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That blowup-the-system button, not pushed since FDR’s attempt to stack the court with Democrats during the New Deal, is for Obama to use the bully pulpit of the White House, and the national stage of a presidential campaign, to launch a bitter attack on the current court as a corrupt tool of the Republican right wing.

It is a move that could energize Democrats and independents even as Republicans celebrate a major legal victory.

Some Democrats, sensing a political windfall, can’t wait to start the offensive.

Nebraska’s Sen. Ben Nelson, a retiring Democrat, sent out a news release last week condemning the “activist Supreme Court,” for potentially dismantling a healthcare law. The senator said without the new law, health insurance premiums will be “skyrocketing,” and endanger “healthcare for more than 100,000 Nebraska kids with pre-existing medical conditions such as asthma or diabetes.”

That protest comes from a conservative Democrat who held back his vote for the bill until the White House awarded his state a special Medicaid deal. The deal was rescinded but not before the GOP memorably labeled it an attempted bribe, “The Cornhusker Kickback.”

Now even Nelson is climbing the political ramparts to defend Democrats.


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Meanwhile in the House, the congressional progressive caucus is already attacking the National Federation of Independent Business for its suit against healthcare reform because they got a $3.7 million grant from Crossroads GPS, a conservative political group advised by Karl Rove, the former adviser to President George W. Bush.

But the heart of any attack on the Supreme Court for derailing healthcare reform will come from Obama.

After oral arguments at the Supreme Court, he signaled his willingness to target the court’s conservative majority during the presidential campaign. Obama told reporters that if the court overturns “a duly constituted and passed law,” the justices will be guilty of “judicial activism.” With words that sounded like a threat he added: “I’m pretty confident that this court will recognize that and not take that step.”

The hardball political fact is that attacking the court will help the president’s campaign and it will damage the court for years to come.

A CBS News/New York Times poll released last week shows most Americans already believe the ruling on healthcare reform will be based on justices’ personal and political views. According to the survey, 55 percent of Americans believe the justices’ political ties will play a role in the healthcare decision.

An earlier CBS/New York Times poll from this month found an overwhelming majority of Americans, 76 percent, said the personal and political views of the Supreme Court justices influence their decisions in all cases — not just healthcare. The same poll found that 60 percent of Americans now believe that lifetime appointments for Supreme Court justices are a “bad thing.”

The bottom line is that public confidence in the Supreme Court, after controversial and political decisions in Bush v. Gore and Citizens United, is the most fragile it has been in a generation. And remember, the same polls have shown most Americans are not convinced the healthcare reform law is a good idea.

Conservative columnists, most notably George Will, have accused liberals of trying to put “the squeeze” on Chief Justice John Roberts.

Will points to Senate Judiciary Committee Chairman Patrick Leahy’s (D-Vt.) warning that the court needs to avoid “another 5-4 ruling.”

Leahy suggested that Chief Justice Roberts emulate “the leadership that Chief Justice [Earl] Warren provided in the unanimous decision in Brown v. Board of Education.”

I made the same point in this column in April, and I am not trying to bully anyone.

The relevant point is that the court may do irreparable harm to its reputation with another highly political split between justices appointed by Democrats and justices appointed by Republicans. A 5-4 defeat of the healthcare law will erode trust in the justice system.

It will be another example of how polarization has poisoned our politics during the past decade.

Team Obama is right to conclude there is fertile political ground to be plowed in lashing out against the right-wing activism of the Roberts Court.

And as a bonus for Democrats if the court rules against “ObamaCare,” the public will be looking to Republicans to see what ideas they have to rein in escalating insurance costs, to get coverage for the uninsured and to help people with pre-existing conditions.

Mitt Romney might suggest the plan he passed as governor of Massachusetts. Just joking!

Juan Williams is an author and political analyst for Fox News Channel.