Campaign to Win Hearts and Minds of Supreme Court Justices

Political campaigns are decidedly made into emotional orgies which endeavor to distract away from the real issues.

James Henry Robinson (1863-1936), The Human Comedy

The United States has never seen anything quite like it – the political campaign to win the hearts and minds of Supreme Court Justices, especially the heart and mind of Chief Justice John Roberts, prior to the King v .Burwell, the case involving the legality of federal subsidies in 36 states.

The issues are the moral -, legal -, and business -related. They hinge upon what happens if the Court rules against federal subsidies.

• Says the moral school, it would be inhumane, cruel, and heartless to remove subsidies from 7 million uninsured who make less than 4 times the poverty level. Removal would cause these unfortunates to get sick, go bankrupt, or die.

• Ridiculous, shouts the legal school, it is ludicrous to equate subsidy removal with moral deprivation. You cannot disregard the plain language of the statue, which says subsidies apply only to those in exchanges “established by the state,” not to federal exchanges. One must always follow the letter of the Law.

• Get real, claim those in the business sector, ending federal subsidies would create irreparable damage to the insurance industry, cause thousands of hospitals to close, and reduce the flow of new drugs from profit-starved pharmaceutical companies. In a biting editorial on the hypocrisy of the health industry, “Until King Dumb Come,” WSJ editors assert, “ObamaCare’s industry allies are shaking the tin cup at the Supreme Court.”

The hope among these various schools of thought is that their arguments will influence the hearts and minds of the Supremes and cause them to shift their votes.

King v. Burwell is not a strictly moral, legal, or business issue . It is all three issues wrapped into one. It entails answers to two explosive political questions: what happens if ObamaCare disintegrates? What are the human consequences? What is a humane and sustainable replacement?

The answers are complicated by two simultaneous current events:

One, the public is souring on the health reform law with a record low approval rate of 37%.

Two, the Obama administration’s strategy of highlighting penalties for not being insured - $95, in 2014; $395 in 2015,$695 in 2016- is working: 10 million are now expected to enroll by February 15.

The idea of winning hearts and minds of the Supreme Court justices brings to mind a new concept of selling one’s argument: Emotionomics.

This is a psychological term introduced by Dan Hill in his 2010 book by the same name. Hill says business success rests more on people’s emotional decision making rather than rationality and efficiency.

This is true of political success as well. In the current campaign to sell ObamaCare or to undo it, “winning hearts and minds” is a form of domestic propaganda – information spread widely to help or harm the health reform movement, and its main vehicle, ObamaCare.

With King v. Burwell, the question is: will emotional arguments intimidate the Court to disregard the law and to focus instead on its intent and business impact?

It may depend on Robert’s Rules of Order in his heart and mind.