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5-4 and 50-50

The Supreme Court and the nation couldn’t be more sharply split. And the divide could get worse.


Split decision: Public opinion is divided on the health care law.(Chet Susslin)

The Supreme Court’s oral arguments on health care last week offered a nightmare preview of what could await Washington after the 2012 election: a political system that is closely, deeply, and even bitterly divided.

In the Court’s questioning on President Obama’s health care law, the ideological chasm could not have been greater between the five Republican-appointed justices and the four selected by Democrats. And the division of power between them could not have been more tenuous.


That’s not an unreasonable expectation for the alignment that the next election may produce on both ends of Pennsylvania Avenue. The most reliable prediction about November may be that it leaves power in Washington more precariously balanced between the parties than it is today. Although Republicans are favored to maintain control of the House, few would be surprised if their majority recedes after the high tide of 2010. The next Senate could be split almost exactly in half, with the majority party probably holding fewer seats than the Democrats’ 53 today. And, although it’s conceivable that a recovering economy could allow President Obama to equal his first victory, it’s more likely that whoever wins the presidency will capture less than his 365 Electoral College votes and 52.8 percent of the popular vote from 2008.

In all, the most predictable message of 2012 is likely to be that after a surge toward the Republicans following the 9/11 terrorist attacks, a tide of disillusionment with President Bush that lifted the Democrats in 2006 and 2008, and a sharp snap back toward the GOP in 2010, America has reverted to being a 50-50 nation. Which is, of course, exactly where we started this century after the 2000 presidential campaign that produced the closest thing to an electoral tie since 1880.

But although 2012 will likely show the parties again converging in strength, all evidence suggests that they are diverging even more in philosophy and agenda. In 2000, after all, Bush ran as a “compassionate conservative” who would govern as “a uniter, not a divider.” That proved more of a slogan than a compass. But this year, the two parties barely even gesture toward the aspiration of reconciliation.


Mitt Romney, the presumptive Republican presidential nominee after this week’s primary sweep, is offering the most ambitious conservative agenda proposed by any GOP standard-bearer since Ronald Reagan in 1980, if not Barry Goldwater in 1964. From cutting more taxes to converting Medicare into a premium-support system and Medicaid into a block grant, he has formulated a blueprint with virtually no appeal to Democrats. It’s also an agenda scaled to a landslide mandate that Romney has almost no chance of winning in a country this closely divided.

So far, Obama’s second-term policy plans are more modest. But, in tone, he is taking an approach that’s every bit as pugilistic. Unlike President Clinton, who launched his 1996 reelection campaign by declaring, “The era of Big Government is over,” Obama turned toward November this week by denouncing both the Court’s threat to his health care law and the House Republicans’ budget drafted by Rep. Paul Ryan of Wisconsin. The vast gulf between Obama’s fiscal priorities and the GOP’s (centered on whether to extend or even expand Bush’s tax cuts for the wealthiest) ensures intense conflict for as long as this president remains in office, even if, ultimately, he would likely pursue a bipartisan budget deal in a second term, as he did in last summer’s debt-ceiling standoff.

The coming Supreme Court decision on health care could escalate this confrontation like a grenade rolled into a bar fight. Substantively, the case represents the most important constitutional challenge to the federal government’s power since the epic decisions when a conservative Court invalidated key pillars of President Roosevelt’s New Deal in 1935 and 1936, notes New York Law School professor James Simon, author of a recent history of that period, FDR and Chief Justice Hughes. Politically, the prospect of five Republican-appointed justices outvoting their four Democratic-appointed colleagues to overturn a health care law that represents the Democratic Party’s most significant legislative achievement in 45 years promises a firestorm.

The New Deal-era confrontation de-escalated quickly when Congress rejected FDR’s Court-packing scheme in 1937 and Chief Justice Charles Hughes (perhaps in tactical retreat) steered the Court majority toward an interpretation of the Constitution’s commerce clause that upheld Roosevelt’s major initiatives. It is those rulings that today’s five-member conservative Court majority could retrench in the health care decision. In the process, the justices could reopen not only the argument about health care but also decades of legal assumptions about what Washington can and cannot do.


The safe forecast through the election and beyond is heightened ideological confrontation in both Congress and the courts over Washington’s reach. The alternative would be for each party to recognize that it lacks the electoral support to impose its agenda on the other—and instead to seek compromises that reflect the nation’s diversity of opinion. Judging by last week’s questioning, the Court seems less likely to point Washington toward that conciliatory path than toward a far more contentious one.

This article appears in the April 7, 2012 edition of National Journal Magazine.

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