Friday, April 6, 2012

Does Obama Already Know The Supreme Court Decision?

Although the justices have allegedly already made up their minds we won't know what the disposition on ObamaCare was until June (I am given to understand that it could also change until then--although it is not likely). The standing numbers of court are 4-4 with Justice Kennedy being the "swing vote." That is:

  1. Thomas and Alito are almost definite no's (Thomas' wife is part of an influential Tea Party group. It seems unlikely his beliefs vary widely).
  2. Ginsberg, Breyer, Sotomayor, and Kagan (Democratic appointees) are very likely yes's
  3. Chief Justice Roberts hammered the Obama Lawyers and is a likely no.
  4. Scalia, who asked "If the government can do this, what can it not do?" is a likely no.
  5. That leaves Kennedy as the remaining question. He asked tough questions about the mandate but that is not evidence he will vote against. Court watchers think he could go either way.
Today, as the presumptive Republican nominee, Mitt Romney, squares off against Obama, each is trying to frame the electoral question in their own light. Romney: is Obama competent to steer the economy? Obama: Romney is a tool of the super-rich--do you really want that?

Hanging over all of this is the coming Supreme Court decision that will likely have substantial impacts on the campaign. This raises the question: Does Obama already know?

Does Obama Already Know The Outcome?
At least one guy thinks he must:
After oral arguments, it is common practice for the Justices to meet Friday morning in a conference room where each Justice votes on the case, beginning with the Chief Justice and proceeding according to seniority. Shortly thereafter, Justices will be assigned the writing of majority and minority opinions and comment on various case issues. Decisions can change over the months until presentation of the final ruling, which in the case of ObamaCare will probably be sometime in late June.
Whatever happened Friday morning, it’s a safe bet that Barack Hussein Obama was the 10th person to know, having undoubtedly received a call from Elena Kagan minutes after the meeting ended.
A lot has been made of Obama's first speech on the matter. Here is the full text. Let's look at some excerpts for analysis.
OBAMA: "Ultimately I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress," he said.
That sounds pretty confident, I guess, but as Pajamas Media notes:
That “strong majority” came entirely from the Democratic Party, which was defeated in the 2010 mid-terms over dissatisfaction with the ObamaCare law. The majority of American voters did not support ObamaCare’s passage and still want the law repealed. So, the president’s call amounts to an appeal to keep an unpopular law intact just because his party passed it and he signed it.
Although partisan, this is factual: the law isn't all that popular (with independents, anyway). It's also true that the Supreme Court has overturned laws before and this is not unprecedented or even all that extraordinary. Basically Obama is just talking partisan.

So is there evidence that he knows? I think saying "I'm confident" means nothing. You can say "I'm confident Stirling Silver will win the horse race" and unless you bet money on it, it doesn't mean anything. In common parlance, confident is not the same thing as sure. On the other hand, Obama is talking tougher than he ought to be (i.e. veering into un-truth) and that indicates to me that he might know the answer and not like it. This is an appeal to the base. It suggests to me that if/when the the court strikes down ObamaCare he is framing the event the way he wants the Democratic base to take it.

Then there's this:
OBAMA: "And I'd just remind conservative commentators that for years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example, and I'm pretty confident this court will recognize that and not take that step."
A lot of people have seen this as a rampant attack on the courts. I don't see that. If anything he's just tweaking conservatives for being on the other side of judicial activism right now (although he's not seeing the irony of being on the other side too!). He doesn't blast the court for being "un-elected" per-se but rather notes that, in previous eras, some conservatives have raised that issue (Roe v. Wade comes to mind).

But does this mean he knows? If he does, he's once again setting up the "this is radical" argument. Which would make me think he knows and it isn't good--but then, again, he'd have to say the same thing if he didn't know. So I call this a wash.

A big chunk of his answer is on the benefits that ObamaCare brings. He says this:
OBAMA: "I think it's important -- because I watched some of the commentary last week -- to remind people that this is not an abstract argument. People's lives are affected by the lack of availability of healthcare, the inaffordability of healthcare, their inability to get healthcare because of preexisting conditions.
"The law that's already in place has already given 2.5 million young people healthcare that wouldn't otherwise have it. There are tens of thousands of adults with preexisting conditions who have healthcare right now because of this law. Parents don't have to worry about their children not being able to get healthcare because they can't be prevented from getting healthcare as a consequence of a preexisting condition. That is part of this law.
"Millions of seniors are paying less for prescription drugs because of this law. Americans all across the country have greater rights and protections with respect to the insurance companies, and are getting preventive care because of this law.
Any evidence of knowing? No--again, this is basic strategy. Reminding people there are parts of ObamaCare they probably like is probably a good idea no matter what the outcome.

Finally, Obama says this:
OBAMA: "I'm confident this will be upheld because it should be upheld. And again, that's not just my opinion, that's the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who've examined this law, even if they're not particularly sympathetic to this particular piece of legislation or my presidency."
So does he know? Is he confident? He uses the word confident four times--that's a lot of confidence. Maybe too much? I don't know. Republican commentators are blasting his "attack on the court." I looked into the speech expecting to find much harsher rhetoric. Is he prepping the base for an over-turn where he can paint the supreme court as radical? Maybe. The I'm-sure-you-won't-do-it-that-would-be-radical could go that way. Is the trying to intimidate Justice Kennedy into changing his mind at the last minute? Seems unlikely. Is he positioning himself as wise constitutional scholar so that when the court upholds ObamaCare he can say "See? I was right all along? Don't know what you guys were on about." Could be. That is kinda his style.

So the answer is: I don't know. Maybe he doesn't either.

What Do I Think?
5-4 Supreme Court decisions about matters of national policy are not good. They hi-light the divide in our country rather than doing anything to heal it or being above it. It took 9/11 to bring us together on Bush v. Gore. I hope, if there is a 5-4 decision on ObamaCare it doesn't take something like that after ObamaCare.

On the prognostication front: assuming Obama does know--and that ObamaCare was shot down--I think it is more likely that, when asked about it, he would say "We shall let the court decide--let's see what they say." This is because spending 20 minutes talking about it is doubling down on ObamaCare and he has no real method to scare the court. Worse: overturned or not it's still unpopular with independents. So if he sticks to it now and then loses it in June, while his speech might "rile up the base" it would even moreso hurt him with independents (a point Nate Silver makes as-ever-eloquently here).

What he does with this speech is paint his opponents (not the court--the Republicans, espeically the Republican press) as radicals--something that would be 'confirmed' if the court sustains ObamaCare--but something that would be effectively refuted if the court shoots it down (save for in the eyes of liberals--but Obama is not hurting for liberal votes).

So my guess is that if he knows then it was sustained.  But I can't tell for sure by his speech.

Oh, and one more thing, as a constitutional law professor I'll assume that (if he knows) he'd like to be seen as coming out on the right side of the argument. So, again, his comments like "this will be uplheld because it should be upheld. And again, that's not just my opinion, that's the opinion of a while lot of constitutional law professors and academics..." that's, again, putting himself on the side of academics of which he is one. Now, this is also true: a goodly number of people have upheld it--but still, if he knew that the court had shot it down (and their arguments for it--presumably good ones)--I would expect the academic in him, which, I am sure wants respect, to leave himself some wiggle room for the decision.

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