The Supreme Court and the 2012 election: Assessing the underwhelming impact of three overwhelmingly important decisions

The following contribution to our online symposium on the Supreme Court and the Election is by Chris Gober, co-founder of Gober Hilgers PLLC, a boutique litigation and political law firm with offices in Texas, Washington, D.C. and Nebraska. Gober represents clients in federal and congressional investigations, administrative enforcement actions, and political compliance matters. He previously served as General Counsel to the National Republican Senatorial Committee, Deputy Counsel to the Republican National Committee, and Counsel in the Justice Department’s Office of Legal Policy, where he worked on national security issues and the nominations of Chief Justice John Roberts and Justice Samuel Alito to the U.S. Supreme Court. In addition to his legal experience, Gober has worked as a General Consultant and political operative for various campaigns, including President George W. Bush’s 2000 and 2004 presidential campaigns. He is a graduate of Texas A&M University and Harvard Law School. 

In four highly anticipated days, the Supreme Court issued decisions in cases involving three of the most polarizing issues among our electorate: health care, immigration, and corporate political spending.  The anticipation mounted not only because these decisions will have an extreme substantive impact on public policy, but also because five Justices on the Court had the potential to change the political narrative less than 135 days before a highly competitive presidential election.  Consider the political connotations of these cases.

• The Patient Protection and Affordable Care Act, or “Obamacare” in conservative circles, was a sweeping piece of legislation that encompassed almost every traditional hot-button topic: abortion and contraception, end-of-life care, state and individual rights, federal deficits, taxes, and the overall economy.  In what was the most politically charged case since Bush v. Gore, the Court had the ability to gut Obama’s signature accomplishment and his first-term legacy in a single opinion.

• Arizona’s immigration law, at the time of its passage, was the broadest and strictest anti-illegal immigration measure in U.S. history.  Chris Cillizza of The Washington Post assessed the case as follows: “Virtually any way that the Court decided on the Arizona measure would have forced Romney to respond on an issue he’d rather not address between now and November…The simple political reality on immigration for Romney goes like this: the Republican base is vehemently opposed to illegal immigration or a path to citizenship in any shape or form but to adopt that policy would be essentially write off the growing Hispanic community for years to come.”

• The American Tradition Partnership case involved a state’s ability to restrict corporate independent expenditures for state and local races only, buy many Americans hoped that the Court would revisit Citizens United and find that corporate independent expenditures do in fact have the ability to corrupt.  Citizens United and its progeny spawned the detested “super PAC” and created more spending flexibility for 501(c)(4)s, which has resulted in an unprecedented amount of political spending that has dramatically altered the political landscape.  In reality, that new landscape allows Romney to compete financially with the most prolific fundraising machine ever.  Despite not having a competitive primary election, Obama’s campaign has spent more than $208 million in 2012 compared to the $194 million spent by the Romney campaign and his super PAC combined.

As if the implications of these cases were not enough, the Court faces increased charges of over-politicization while its public approval ratings fall.  Pundits and politicians alike waited with bated breath while spending an inordinate amount of time predicting the impact of these decisions on the 2012 elections, as if the Justices have some form of super-super-delegate status that could single-handedly change their outcome.  But while these decisions will fuel the rhetoric and shape Americans’ positions on these issues over the long term, it is unlikely that the Court will have a direct impact on voters over the next three months.  Supreme Court decisions have had little impact on elections historically and 2012 is almost certainly no exception; however, it is plausible that the Court’s decision to uphold the constitutionality of the individual mandate as a tax provides Mitt Romney an opportunity to connect with swing voters on the issue that matters most: the economy.

Polling suggests that the health care law is a net “wash” for the 2012 election, and CNN Polling Director Keating Holland observed that “the court’s decision seems to have hardened existing opinions rather than changing them, making the fight for the dwindling crop of persuadable voters all the more important.”  Despite the hardening opinions with respect to the health care law, Romney can appeal to swing voters by framing it in the broader framework of the economy (i.e., how Obamacare is a massive expenditure and expansion of government programs that will be funded by taxing middle class and working people) without engaging in substantive health care discussions.  Romney must reinforce the perception that Obama focused on an ideologically driven policy at the expense of the economy and convince voters that the health care law is one of the things that made it worse.

Of course, the ultimate impact of the Court’s decision will also depend on the composition of the electorate, namely the number of persuadable voters up for grabs in November.  The percentage of swing voters decreased from twenty-two percent to six percent from 1980 to 2004, but Obama’s shellacking of John McCain in 2008 signaled a reemergence of the independent voter when women and Hispanics fled to Obama.  In other words, a key question in this election is whether Romney and Obama are competing for twenty percent of the voters or six percent?  If it’s the latter, then the candidates’ respective turn-out operations will prove far more relevant than any Supreme Court decision ever could.

To the extent that independents are at play, then Romney arguably has a chance to defeat Obama if he sticks to James Carville’s playbook from an election more than twenty years ago.  During the 1992 presidential race, Carville famously scratched three concise “Rules” on a dry erase board that hung near his desk in the Clinton campaign headquarters to help keep his staff on message.  They were:

–          CHANGE VS. MORE OF THE SAME

–          THE ECONOMY, STUPID

–          DON’T FORGET HEALTHCARE

With disappointing job growth and an 8.3% unemployment rate, there is little doubt this election will largely be a referendum on the economy.  Yet Carville’s “don’t forget the healthcare” rule may still prove relevant today, and Romney could ultimately be the benefactor of the Court’s decision to uphold the constitutionality of the individual mandate as a tax in a race that will be decided at the margins.