The potential flaw in Democrats’ plan to make this Supreme Court fight all about health care

But they’re wielding health care to try to get people to the polls anyway, as…

The potential flaw in Democrats’ plan to make this Supreme Court fight all about health care

But they’re wielding health care to try to get people to the polls anyway, as a sort of protest vote.

Which raises the question: What are they going to do if and when they come into power? There are a number of governing changes some in their party are pushing. But the party hasn’t coalesced around anything. Democratic nominee Joe Biden has so far been unwilling to entertain major changes to the court, such as filling it with more justices, that could shift the court to the left. Plus, any of those changes would come well after the court decides what to do on Obamacare.

Which means Democrats are left with a message like this: Vote Democrat in 2020, and we’ll lose this vacancy battle and may still lose Obamacare at the hands of the Supreme Court. But at least we’ll have sent Republicans a message.

“The American public will vote on the Senate races this election, and they’ll vote Republicans out of office,” Biden said Sunday. “That’s the consequence.”

“Whoever he appointed was going to be there to overturn the Affordable Care Act,” House Speaker Nancy Pelosi (D-Calif.) said Sunday on CNN, speaking of President Trump. “But be hopeful. People have to be hopeful.”

About a week after the election, the Supreme Court is scheduled to hear a case that could, if decided in favor of Republicans and the Trump administration, effectively destroy the Affordable Care Act and thus take away protections for getting coverage with a preexisting condition. The case is brought by Republican attorneys general who saw an opening after Republicans in Congress zeroed out the individual mandate. They argue that the whole law should fall if there is no longer a tax penalty for not having health insurance.

Trump has nominated a conservative federal judge, Amy Coney Barrett, who has been critical when the Supreme Court upheld Obamacare and is more likely than not to be a vote against it this time. And Trump has made no secret of how he feels about Obamacare. His administration is asking the court to strike down the whole law. “Obamacare is terrible,” he said Sunday. Barrett could be confirmed before the election and seated in time to hear the case. But the case will go on even if there are eight justices, and given that the court already leans conservative, the law was perhaps already in jeopardy.

That’s where Democrats see a political opening to wrap all this together. Protecting health-care coverage incessantly in 2018 helped Democrats win back the House majority, and it’s dropped among issue importance amid coronavirus and economic concerns. But now they can talk about it again during a pandemic.

Democrats could promise to try to rebuild Obamacare if the court knocks it down. But Biden has shied away from talking about that, most likely knowing that it would pull at the delicate truce the Democratic Party has reached for now over how to reform health care. (Biden opposes Medicare-for-all, which is championed by liberal leaders of the party.)

There are other political risks to focusing on Obamacare with regard to this Supreme Court fight. The legal right to abortion could be in jeopardy with such a conservative court. Barrett is personally opposed to abortion. That’s a potentially huge motivator for the Democratic base. But as The Fix’s Aaron Blake pointed out, Democrats have stumbled in the past when talking about abortion with regard to conservative principles, including specifically when it comes to Coney Barrett’s faith.

Democrats also risk overlooking significant pressure from the grass-roots left for Senate Democrats to fight this Supreme Court vacancy tooth and nail. Polls show that a majority of Americans think it’s fairer to let the winner of the election pick the seat.

Democrats have all but admitted defeat on that. In the Senate, Democrats can only delay things for a few hours or days, and Republicans have sketched out a confirmation process that would get Coney Barrett confirmed before the Nov. 3 election or shortly after.

Democrats don’t have many good options here. They seem to have settled on one that tells Americans to vote because of what may happen regardless.