The debate over health care reform’s constitutionality will reach its climax on Thursday morning, when the Supreme Court issues its ruling. But the fight over health care will go on, however the justices rule. It’s a fight that progressives should welcome, but one, I suspect, they won’t win if they keep fighting like they have been.



Ever since oral arguments, when the conservative justices expressed extreme skepticism of the government’s position, supporters of the Affordable Care Act (including me) have been bracing themselves for the worst. But Monday’s ruling to knock down the Arizona immigration law is a reminder that you can’t always predict outcomes based on oral arguments. The conservatives gave the government a rough time in that case, too.

On Thursday, a majority of justices could issue a ruling upholding the law and reaffirming existing doctrine about federal power to regulate the economy. Or a plurality, composed of the Court’s four liberals, could vote that way, while one or two conservatives, presumably Chief Justice John Roberts and/or Justice Anthony Kennedy, could issue a separate ruling upholding the law only because congressional taxing power allows it. Walter Dellinger, the esteemed constitutional law expert, sketched out just such a possibility last Friday in Slate.



But a ruling upholding the Affordable Care Act would not end the controversy over it. Remember, Obamacare faces two mortal threats. One is from the judiciary. The other is from the White House and Congress, should the voters in November hand both over to Republicans. And even the November elections won't end the debate. Conservative activists and their Republican allies are waging a war of legislative and administrative attrition against implementation—and, at the state level, they’re having some success.