Jeff Shesol makes a good point in this Greg Sargent post about how the administration might respond if the Supreme Court strikes down Obamacare:
Shesol predicts that Obama will refrain from direct assaults on the Court in the wake of Obamacare being struck down. “The argument the right has been making is that Obama attempted a wild unconstitutional overreach, and the Court will have just validated this view,” Shesol tells me. “To get out there and attack the Supreme Court gives Republicans an opportunity to stay on the side of the Court and the Constitution.”
He also makes a point that does not seem quite so good:
Obama can argue that in the next four years, one of the liberals could retire, and get replaced by President Romney, which would mean the Court’s “deck will be stacked for a generation” in favor of conservatives, Shesol points out. “That will be a powerful argument .”
So expect Obama to strike an important balancing act: He’ll refrain from directly attacking the Court, while drawing attention to what the Court’s action reveals about just high the stakes of the election really are.
Nothing I’ve seen in polling about judicial issues over the last half-decade makes me think that there is a lot of swing-voter fear of conservative justices. And how does Obama tie this argument together? Vote for me, Americans, or else you’ll get more decisions like this one, which you like? At best this seems like a base-mobilization strategy. Maybe Obama will need one: An anti-Obamacare decision could demoralize that base.