The Supreme Court's three days of arguments on the constitutionality of the Obama health care law have triggered a guessing game, replacing for the moment the 2012 presidential campaign as topic A on the nation's nonstop talk shows. Did the justices' questions tip their hands on how they will vote this summer?
Many of the professional clairvoyants appeared to conclude that the defender for the administration, Solicitor General Donald Verrilli, had faltered under the probing questions from the conservatives on the bench, led by Justice Antonin Scalia. The queries seemed to suggest they have already made up their minds to harpoon the law. With a 5-4 ideological edge over the liberals, they have the votes to do so if they so decide.
After hearing the constitutional pros and cons on the individual mandate requiring Americans to obtain health insurance or pay a penalty, the court took up the question of whether, if it ruled against the mandate, the whole law would have to go.
Simply doing so in a sense raised whether the bathwater would also have to be thrown out with the baby -- including concomitant features such as the requirement that insurers cover pre-existing conditions and dependent children up to age 26. One may wonder why that discussion could not have been held later, in the event the conservative guillotine did fall.
As a matter of fact, one may also wonder why, given the knowledge that this is a presidential election year, the court had decided last year to take up this hugely combustible issue smack of the middle of it. The hearing and vote could easily have waited until after the November election, considering the political stakes involved.
The court, of course, is supposed to be and professes to be blind to politics. But that contention was severely challenged if not refuted by the Bush v. Gore decision on the 2000 Florida recount. That conservative majority ignored precedent on staying out of state elections, while urging that its own decision not be seen as setting a precedent. In giving the election to George W. Bush, the majority said the ruling should be "limited to the present circumstances."
The now-retired Justice John Paul Stevens concluded in his dissenting opinion that "it is confidence in the men and women who administer the judicial decision that is the true backbone of the rule of law," and he assumed that "time will one day heal the wound to that confidence that will be inflicted by today's decision."
But that time has not yet come. The doubts that linger over the court's blind eye to politics have already been fanned by the conservatives' interrogations this week of the health care act's legal defenders.
Peter Finley Dunne's Mr. Dooley years ago delivered his caustic verdict in a famous observation that no matter whether the country follows the flag, the Supreme Court follows the election returns. In the last national elections, the 2010 congressional midterms, the Republicans made sweeping gains, including winning control of the House, with their loudest battle cry a promise to "repeal Obamacare." Mr. Dooley might have concluded it had been heard on Capitol Hill in the august chamber where the nine Supremes toil.
As for the ongoing presidential campaign, this week's hearings were no favor for front-running Mitt Romney. They only resurrected more talk about "Romneycare" as the Massachusetts model for President Barack Obama's individual mandate, complicating the former governor's task in joining the GOP chorus for repeal. The hearings have been no gift to Mr. Obama either, although Democratic political consultant James Carville insists that a Supreme Court ruling against the law would ignite the same flame among the faithful that lit the way to Mr. Obama's election in 2008.
Meanwhile, as the political clairvoyants continue examining the tea leaves left in the judges' cups, the spotlight swings back Tuesday to primaries in Wisconsin, Maryland and the District of Columbia. Mr. Romney is favored to win again, even as more leading Republicans call on Newt Gingrich to drop out and he clings to the hope of an open convention, along with Rick Santorum and Ron Paul.
Jules Witcover's latest book is Joe Biden: A Life of Trial and Redemption" (William Morrow). His email is juleswitcover@comcast.net.