A 50-50 Nation and a 5-4 Court

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A great column by Ron Brownstein underlines a crucial point about America's current political dysfunction. It's not that the country is closely divided, or that the parties are so deeply divided. What's frightening is the combination: voters so closely divided that neither side can expect to get its way, and Washington so deeply divided that compromise is out of the question. It's a formula for furious paralysis at a time when paralysis won't do.

Brownstein worries that, whichever way it goes, the Supreme Court's ruling on Obamacare will only aggravate the problem--partly because the Court itself is both closely and deeply divided.

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.

Maybe, but my take on what the Court will do is a little different. Though I'd be surprised if it said so, the Court will be mindful of the very prospect Brownstein describes. Precisely because the political division in Washington runs so deep at the moment, on a question of this importance the Court will be more inclined towards deference to the elected branches. Of course it will be criticized whatever it does, but at times like this, restraint is much safer as a matter of judicial standing and self-preservation. My guess is that of the putative no votes, Kennedy, at least, will find a way to support the mandate. (Despite his skeptical line of questioning at the hearings? Yes. What did anybody expect? He was bound to go through the motions of wrestling with a finely balanced decision. If you're the designated swing vote, that's part of the job.) Roberts might go along just for sake of 6-3. Regardless, I'll bet that when Kennedy votes as I expect him to, the minority won't be too disappointed.

We'll see.

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