WASHINGTON — The Supreme Court, suddenly at the heart of presidential politics, is preparing what could be blockbuster rulings on health care and immigration shortly before the fall election.
The court, sometimes an afterthought in presidential elections, is throwing a new element of uncertainty into the campaign taking shape between President Barack Obama and presumptive Republican nominee Mitt Romney.
Sharply divided between four conservatives, four liberals and one conservative-leaning swing justice, the court already is viewed as being nearly as partisan as Congress. Within weeks it will rule on the contentious 2010 Democratic-crafted health care overhaul and a Republican-backed Arizona law that’s seen as a model for cracking down on illegal immigrants.
Obama sometimes seems to be running against the court, or at least its conservative members. Whether that will sway voters in November is unclear. The public receives far less information and visual imagery of the Supreme Court than it does of the White House and Congress.
An anti-court strategy by Obama “will fire up his base, but I doubt it will make any bigger impact on swing voters,” said Republican consultant John Feehery.
Meanwhile, strategists in both parties are hoping they can turn the upcoming decisions to their advantage — for instance, possibly boosting Democratic turnout among Hispanic voters unhappy with GOP immigration policies or emboldening the Republican base if Obama’s landmark health care law is ruled unconstitutional.
The Supreme Court already has played a huge and direct role in U.S. presidential politics. Its 5-4 ruling in Bush v. Gore settled the bitter 2000 contest by barring a Florida ballot recount, which Democrats hoped would prevent George W. Bush’s election.
And the 2010 Citizens United case, also decided 5-4, greatly eased political spending restrictions on corporations and unions. It gave birth to the “super PACs” that are reshaping campaigns by raising millions of anonymously donated dollars for TV ads attacking Obama, Romney and targeted congressional candidates.
By holding well-publicized hearings on the health care and immigration cases — and now writing keenly awaited decisions — the court is stirring passions on key issues in this year’s elections. Less clear, however, is how the politics might play out.
Many court-watchers expect the justices to throw out most or all of the health law, which Republicans derisively call “Obamacare.” During public oral arguments, the most conservative justices questioned Congress’ authority to require all Americans to obtain health insurance.
Potential problems for Obama, Romney
Romney may be poorly positioned to exploit such a ruling, however. The similar “individual mandate” that he successfully pushed as Massachusetts governor was a model for Obama’s federal plan.
“I don’t think the Romney campaign will want to make health care a major issue,” said Democratic strategist Doug Hattaway. “Every time Romney criticizes the president’s health care reform, he opens himself up to the Etch A Sketch attack.”
Hattaway was referring to claims that Romney switches back and forth on important policies, erasing and redrawing pages when convenient.
Republican strategist Terry Holt said a court decision overturning the health care law would be an unmistakable setback for Obama.
“It repudiates the singular achievement of this administration,” Holt said.
Feehery agreed, saying such a ruling would make Obama “look like a weak president.”
But it might help other Democrats, Feehery said. “It takes away a law that is unpopular,” he said, “but puts health care back on the agenda for the Democrats, which has been a winning issue in the past.”
In the immigration case, the Obama administration opposes Arizona’s requirement that police check the legal status of people they stop for other reasons.
The law, pushed by a Republican governor and Legislature, has angered some voters, including Hispanics, in battleground states such as Florida, New Mexico and Colorado.
A number of court analysts predict the justices will uphold parts of the Arizona law but may overturn others. That could energize Americans who want tougher sanctions, including deportation, against millions of illegal immigrants in the country.
“This could prove problematic for Romney,” Feehery said, because it would pit his conservative base against much-needed Hispanic voters in targeted states. “If Romney handles it right, by largely ignoring it, it could take out a major source of irritation for Hispanics and maybe help a portion of them see the good side of Romney,” Feehery said.
Earlier this month, Obama, a former constitutional law professor, delivered what some considered a misleading warning to the court regarding the health care law.
“I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” the president said. “And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example.”
White House spokesmen tried to explain that Obama recognizes the court’s power to review laws passed by Congress. His point, said spokesman Jay Carney, is that the Supreme Court traditionally has “deferred to Congress’ authority in matters of national economic importance.”