You have to hand it to the chief justice. He saved the health care bill and with it, perhaps, the Supreme Court's reputation as something other than the third branch of a government that is hopelessly divided along party lines.
And he did it in a way that sticks it to the administration by calling it a tax and allowing Mitt Romney (when he's not defending the similar "tax" he passed in Massachusetts) to attack President Obama as another tax-and-spend liberal.
Had the case gone the other way, the court would've found itself squarely in the middle of a presidential campaign because of a decision that would've been deemed pure partisan politics. The idea of striking down what many view (for better or worse) as the signal accomplishment of the president in the middle of a campaign, with the five Republican appointees outvoting the four Democratic appointees, brings back memories of Bush v. Gore, a low point for the legitimacy of the Supreme Court. Chief Justice John Roberts' vote might've been more political than those cast by the other eight, but if it was (as I suspect), it was also better politics for the court.
Thanks to the chief justice, the Supreme Court's role in the health care debate is over. The justices go off for their summer break having left health care reform exactly where it should be: in the hands of voters, legislators and especially this administration, as a political issue and not a constitutional one.
Now it's up to Obama to do his own politics as well as the chief justice has.
Listening to the president's speech reacting to the decision, what struck me most is how badly this administration has done on their part of the politics of health care. It was one of the first times I've heard the president carefully, succinctly and convincingly explain everything that is good about the bill.
"Obamacare" has taken on a life of its own as a symbol of big government and bureaucracy that is almost totally divorced from the much-needed and popular reforms that are at the heart of the bill. The president and his team did an amazing job in getting the act through Congress after decades of Democrats trying and failing. The solicitor general's office managed to succeed, with a huge assist from the chief justice, in saving the act.
Now it's up to the president to sell it.
It's an old joke in politics that when your numbers are really bad, you don't tell the candidate that no one likes him. You tell him he has a communications problem. When it comes to health care, Obama, the great communicator, has a major communications problem. For real.
Polls show that Americans in fact want health care reform. Plenty of us know what it's like to try to buy insurance for an individual, especially for those who have had some illness along the way.
One thing the people attacking the mandate never mention is that you can't have coverage for pre-existing conditions if you don't have a mandate. Another thing they don't mention is that many of our kids would be uninsured if they couldn't stay on their parents' policies. They also stay away from the prescription benefits for seniors, or well-baby care, or required coverage of mammograms. No, they just go on about government pushing its way into our lives and then, as the applause and cheering mount, pledge to repeal Obamacare.
It's not their job to point out what's right about the bill, how it will help almost everybody in significant ways. That's the president's job. You know he would have done it if the court had gone the other way. He was ready to tell us about everything we were losing. Now, he just needs to spend that energy and vigor telling us about everything we have -- and will gain.
Susan Estrich's email address is firstname.lastname@example.org.