By Mike Dorf
Last week I boldly (or foolishly) predicted that the constitutionality of the individual mandate in the Affordable Care Act and the University of Texas affirmative action case would make it to the Supreme Court in the upcoming Term, while the challenges to DOMA and California's Prop 8 would take a little longer. Today I want to handicap the political payoff of SCOTUS decisions in the various cases. For simplicity, I'll lump the DOMA cases and the Prop 8 case under the general heading of same-sex marriage. So, the questions I'll address here are: Who would benefit from the various possible rulings on the three issues?
Let's start with the ACA. In a recent Washington Post story, I was quoted as saying that the 11th Circuit's decision invalidating the mandate fast-tracks the case to the Supreme Court. That was me making a prediction, but it's also my normative view: Politics aside, given that this case will eventually reach the SCOTUS, it's better that it should get there sooner rather than later, so as to remove the uncertainty about compliance that currently faces states and insurers. But for this post, I don't want to put politics aside.
Perusing the news and blogosphere, it's clear that conservatives want the case to go up to the Supremes pronto. Some of them may have reasons similar to mine, but others, I suspect, are thinking about political advantage. They want to get the law struck down nationwide, and they think that the SCOTUS is likely to oblige them. Maybe they're right, maybe they're wrong about how the case will be resolved by the Nine, but it's interesting to note that they think that a decision by the Court striking down "Obamacare" would be good for their cause. Now here too, maybe they think it would be good for their cause simply because they think the mandate is unconstitutional. But I also think that conservative analysts believe that there would be political advantage in winning in the Supreme Court. The reasoning goes something like this: "If the SCOTUS says the law is unconstitutional, that means it really is unconstitutional, which means the law as a whole is bad." Certainly, if I were one of Rick Perry's political advisers, I'd prepare a statement saying something like this: "Today's Supreme Court decision shows that Obamacare's government takeover of the health care system violates basic principles of our Constitution." Mitt Romney would finally have a magic bullet to distinguish the federal law from the one he signed as Massachusetts Governor. In short, as far as the politics are concerned, on the ACA, Republicans can win by winning.
Conversely, should the law be upheld, Democrats could make the opposite claims. The Obama announcement would go something like this: "Republicans did not have the votes to prevent enactment of this law controlling medical costs and providing Americans with health insurance, so they tried an end-run in court. Hopefully, today's decision by a conservative Supreme Court will put an end to such sore-loser tactics."
So, by my analysis, for each side, winning the merits of the ACA case translates into winning the politics of it. I think the politics are different with respect to both affirmative action and same-sex marriage. On these issues, it's clear that Republicans win by losing. Indeed, they may also win by winning. Affirmative action is broadly unpopular (as evidenced by the fact that even traditionally blue states such as CA, MI, and WA voted to ban it). Thus, just about any decision that puts affirmative action in the news, and thus raises its salience for voters, benefits Republicans.
Likewise, a broad decision recognizing a constitutional right to same-sex marriage could energize socially conservative voters. Of course, the issue wouldn't be on the ballot in the 2012 Presidential election, and the President has no formal role with respect to constitutional amendments, but it wouldn't take much for the Republican nominee to exploit the issue by linking it to Presidential appointments to the Supreme Court. The issue would provide a bigger boost to the Republican nominee if it ends up being one of the social conservatives (currently Perry and Bachmann) than if it ends up being Romney. Romney would undoubtedly denounce the Supreme Court decision recognizing a same-sex marriage right but the denunciation would not be very credible, given his past positions.
What would be the political implications of a SCOTUS decision rejecting a right to same-sex marriage? Not much, I'm afraid. Unlike the Republican nominee in the mirror-image situation, President Obama would be hard-pressed to exploit the decision because he himself has still not "evolved" into supporting same-sex marriage as a matter of policy, much less as a matter of constitutional right. His Justice Department's decision not to defend DOMA in court is based on the narrow ground that DOMA was motivated by "animus" towards gay people in violation of Romer v. Evans, rather than the broader ground that there is a federal constitutional right to same-sex marriage. I could see the President evolving all the way to supporting a constitutional right to same-sex marriage after he was re-elected, but not before. Thus, I think that a Court decision rejecting a same-sex marriage right would have little impact on the 2012 race.
To be sure, all of these issues are probably marginal compared to what the economy looks like fourteen and a half months from now, but in a tight race, they could make a difference. And by my assessment, there are more ways for the Republicans to benefit politically than for the Democrats. Needless to say, I'd love to be proven wrong.