Every political strategist working the fall elections sees a game changer coming by the end of the month.As always, "Polarization" simply means, Democrats aren't getting their way.
That’s when the Supreme Court rules on the constitutionality of President Obama’s signature legislative accomplishment, the Affordable Care Act.The Democrats have a nuclear option in this political game if the high court throws out the healthcare law as unconstitutional.That blowup-the-system button, not pushed since FDR’s attempt to stack the court with Democrats during the New Deal, is for Obama to use the bully pulpit of the White House, and the national stage of a presidential campaign, to launch a bitter attack on the current court as a corrupt tool of the Republican right wing.It is a move that could energize Democrats and independents even as Republicans celebrate a major legal victory.Some Democrats, sensing a political windfall, can’t wait to start the offensive.Nebraska’s Sen. Ben Nelson, a retiring Democrat, sent out a news release last week condemning the “activist Supreme Court,” for potentially dismantling a healthcare law. The senator said without the new law, health insurance premiums will be “skyrocketing,” and endanger “healthcare for more than 100,000 Nebraska kids with pre-existing medical conditions such as asthma or diabetes.”The bottom line is that public confidence in the Supreme Court, after controversial and political decisions in Bush v. Gore and Citizens United, is the most fragile it has been in a generation. And remember, the same polls have shown most Americans are not convinced the healthcare reform law is a good idea.Conservative columnists, most notably George Will, have accused liberals of trying to put “the squeeze” on Chief Justice John Roberts.Will points to Senate Judiciary Committee Chairman Patrick Leahy’s (D-Vt.) warning that the court needs to avoid “another 5-4 ruling.”Leahy suggested that Chief Justice Roberts emulate “the leadership that Chief Justice [Earl] Warren provided in the unanimous decision in Brown v. Board of Education.”I made the same point in this column in April, and I am not trying to bully anyone.The relevant point is that the court may do irreparable harm to its reputation with another highly political split between justices appointed by Democrats and justices appointed by Republicans. A 5-4 defeat of the healthcare law will erode trust in the justice system.It will be another example of how polarization has poisoned our politics during the past decade.Team Obama is right to conclude there is fertile political ground to be plowed in lashing out against the right-wing activism of the Roberts Court.