Can Republicans Win by Losing at the Supreme Court?

With rulings expected soon in cases involving gay marriage and the fate of the Affordable Care Act, the electoral consequences will soon be laid bare.

U.S. Supreme Court Chief Justice John G. Roberts (L) and Justice Anthony M. Kennedy arrive for the State of the Union address by President Barack Obama on January 20, 2015 in the House Chamber of the U.S. Capitol in Washington, DC.

Photo by Mandel Ngan-Pool/Getty Images

With the U.S. Supreme Court poised to issue blockbuster rulings on same-sex marriage and health care, Republicans have a blueprint for victory: They need to lose.

Republicans have played a leading role in asking the court to undercut Obamacare by barring tax subsidies for people who buy insurance in at least 34 states. GOP state officials are urging the court to uphold their gay-marriage bans.

Yet legal success on either front would throw the party—and its presidential candidates—into a political thicket. A victory on health care could strip insurance from more than 6 million people, including policyholders in the states set to cast the first votes for the Republican nomination: Iowa, New Hampshire, and South Carolina.

And ruling against gay marriage would make the issue a focal point for the 2016 general election, leaving Republicans to argue against a right supported by six in 10 Americans.

Both rulings are due by the end of June as the court finishes its nine-month term with its traditional flurry of major opinions.

In both cases, Justice Anthony Kennedy and Chief Justice John Roberts hold the votes that might save Republicans from what could be a political disaster. Kennedy's track record suggests he will join the four Democratic appointees to back marriage rights, while Roberts cast the vote that saved Obamacare in a case three years ago.

Health care

A ruling against Obamacare would throw American health-care into a new period of turmoil. Unless the justices delayed the effective date of the decision—something the court hasn’t done since 1982—it would almost quadruple the average premium for affected policyholders in a matter of months.

What's more, the ruling might send the individual insurance markets in the affected states into what economists call a "death spiral": The higher premiums would mean that only the sickest and most desperate buy insurance. That would cause premiums to rise even more.

That scenario would pressure Republicans on multiple levels. In the states, officials who until now have resisted Obamacare would face calls to set up exchanges so that residents could continue to collect the tax credits. In Washington, Republican lawmakers would suddenly have to shift from trying to dismantle Obamacare to managing the fallout.

"If the Supreme Court rules against it, they're going to have to have an answer for the millions that now are relying on this insurance," said Ron Bonjean, a Republican strategist and ex-aide to former Senate Majority Leader Trent Lott of Mississippi. "They'll have to provide a credible alternative."

Also on Bloomberg Politics: What Happens When Republicans Realize Obamacare Was Written for Them?

Senate Republicans led by Ron Johnson of Wisconsin (who is up for reelection next year) are already proposing a bill that would extend the tax credits through the 2016 election. The measure, however, would also repeal the law's individual and employer mandates, which require people to acquire insurance and businesses to offer it.Those provisions would almost certainly mean White House opposition, making the bill as it stands more a political statement than an avenue to fill the hole the high court ruling might open.

"I'm not sure it will be enough to say, 'We've got an approach but the president will veto it,'" said Karlyn Bowman, a public opinion specialist at the American Enterprise Institute in Washington. "Something will have to happen pretty quickly so those people are not without coverage."

Gay marriage

On gay marriage, the party's longstanding opposition has left it at odds with public opinion. The latest Gallup poll shows record support for legalized same-sex marriage, with 60 percent favoring and 37 percent opposed. Same-sex couples can now wed in 36 states.

A Supreme Court ruling against gay marriage would set up a new round of state-by-state fights. Some of those battles would occur in court, as judges sort out the effects of earlier rulings legalizing marriage.

Also on Bloomberg Politics: How the Supreme Court Could Change the Republican Debate on Gay Marriage

Other fights would take place at the ballot box. Marriage advocates could try to put the issue before voters in Ohio and Michigan, two presidential swing states where gay marriage is currently illegal.

Supporters might also look to Arizona and Colorado, states that now have gay marriage because of court rulings. A Supreme Court decision potentially would nullify those rulings, forcing supporters to turn to ballot initiatives.

The fracas would leave Republican candidates in a bind, forcing them to try to placate the social conservatives who are key to winning the party's presidential nomination without alienating middle-of-the-road voters who support gay marriage and who are key to winning the general election.

"Having it continue to go through a domino effect isn't necessarily helpful for Republican candidates who are trying to appeal a wider section of voters than just social conservatives," Bonjean said.

A ruling legalizing gay marriage wouldn’t entirely take the issue off the political table. Wisconsin Governor Scott Walker is calling for a constitutional amendment to allow states to ban the practice. And many opponents would view the Supreme Court decision as an overreach and an infringement of religious rights, says Saul Anuzis, the former chairman of the Michigan Republican Party.

"I don’t think this is the final chapter at all," Anuzis said. "I think it will focus the fight and again probably re-energize people because now they will have a very specific target."

Even so, people on both sides of the issue say many Republicans would prefer seeing gay marriage fade as a political issue.

"They'd probably be better off losing the gay marriage issue, politically that is," said Stuart Rothenberg, editor of the nonpartisan Rothenberg Political Report in Washington. "It would remove the issue from the debate, and the GOP is now on the wrong side, politically, of the debate."      

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