I have written this Essay at Slate. It begins:
In the middle of this week’s three-day health care oralargumentmarathon at the Supreme Court, the justices pondered how Congress would react if the court struck down the individual mandate and perhaps either part or all of the rest of the 2,700-page health care law. Justice Kennedy, recognizing that the current hyperpolarized Congress cannot get much done, asked if the court in thinking about congressional reaction to its ruling should consider “the real Congress or a hypothetical Congress.”
Justice Kennedy’s question introduced a dose of realism into the debate. Of course the current Congress won’t overcome its differences and do anything constructive if the court kills Obamacare. For the foreseeable future, the court’s word on the health care law will be final.
And if that word is a death knell to Obamacare, it would likely mark the end of any remaining illusions of a “hypothetical Supreme Court.” You know which court I’m talking about—the one where justices act as “umpires,” calling balls and strikes, discovering but not making law, acting with humility and judicial minimalism. The one which Chief Justice John Roberts promised the country at his 2005 confirmation hearing.
After discussing the electoral implications of such a ruling, its likely effect on the Senate confirmation process for Supreme Court justices, and partisan realignment on the Supreme Court, it concludes:
I have no idea whether or not Justice Kennedy or Chief Justice Roberts will blink when faced with the political implications of a ruling striking down the health care law, the signature achievement of President Obama’s first term. But such a decision could not only influence whether or not Obama gets a second term; it could also change in fundamental ways how justices are chosen and what the public thinks of them and the institution they represent.