The Corner

Law & the Courts

The Dual Benefits of Attacking ACB on the ACA

Supreme Court nominee Amy Coney Barrett is sworn in during her confirmation hearing before the Senate Judiciary Committee, Washington, D.C., October 12, 2020. (Patrick Semansky/Reuters Pool)

Over the last month, the top Democratic attack on Amy Coney Barrett was that she would invalidate the Affordable Care Act in an upcoming case before the Supreme Court. As Ramesh Ponnuru has written, the odds that the Supreme Court will actually scrap Obamacare are basically zero.

So why was the ACA at the center of the campaign against ACB? 

Democrats have an advantage over Republicans on the issue of health care, and while polls showing strong support for Barrett’s confirmation indicate the attack didn’t hurt her, the focus on health care at least helped Democrats avoid an unpredictable and polarizing culture war that could have hurt them right before the election. It was a safe play ahead of Election Day.

For Biden, the second benefit of the ACA attack is that when the Court declines to scrap Obamacare that will weaken the left-wing push to pack that Supreme Court — a deeply unpopular proposal that could only hurt Democrats in 2022 and beyond. 

Biden has waffled on the issue of Court-packing and punted the question until six months after Election Day. But in 2019, he said: “I would not get into Court-packing. We add three justices; next time around, we lose control, they add three justices. We begin to lose any credibility the Court has at all.” It seems unlikely that in 2021 Biden would want to effectively abolish the Supreme Court, but it remains unclear what he would do if a Democratic Congress passed a bill increasing the number of justices on the Supreme Court.

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