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With docket filling for the fall, high court looms over 2012 election

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The Supreme Court is seen on June 18, 2012. The high court is set to rule within days on the constitutionality of President Barack Obama's health care overhaul.

The Supreme Court of the United States – as much as campaign spending, the news media, and political ads on television – is a force shaping the 2012 presidential campaign.

That’s not only because the justices will soon decide the fate of both the Affordable Care Act and the Arizona anti-illegal immigration law, but because the court’s docket for its term beginning in October has a number of contentious cases on it. Among them: the use of racial preferences in admissions to state universities, the ability of U.S. citizens to challenge the validity of the government’s use of electronic surveillance to detect terrorist threats, and whether federal law allows suits in U.S. courts over alleged human rights violations committed in foreign countries.

Other high-profile cases dealing with same-sex marriage, campaign finance, the Voting Rights Act, and an Arizona law requiring proof of citizenship to register to vote have a good chance of being added to the docket before October.

Election Day seems likely to serve as a referendum on the court itself, especially if the justices strike down all or parts of President Barack Obama’s signature legislative achievement, the health care overhaul.

Obama has signaled that if the justices struck down the law, he would make “judicial activism” a theme of his campaign. In his 2010 State of the Union address, he already complained about the court loosening campaign finance rules in its Citizens United decision.

Tom Daschle, former senate majority leader, joins MSNBC's Andrea Mitchell to discuss the potential decision of the Supreme Court on President Obama's health care bill.

And after the justices heard oral arguments in the health care litigation, Obama told reporters, “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” He said conservatives had complained for years about “a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law.”

Obama would take up that conservative grievance and ask voters to give him a second term put his imprint on the court.

And that appointment power is what’s looming over voters’ choice of Obama versus Mitt Romney; the ability to select successors to Justices Ruth Bader Ginsburg, Antonin Scalia, and Anthony Kennedy -- the three oldest justices on the court, all of whom are over the age of 75.

As is almost everyone else in Washington, several former Justice Department officials and law professors who spoke at a panel discussion Tuesday sponsored by the progressive-leaning American Constitution Society speculated on what the court might do in the landmark health care case, which could be announced as early as Thursday.

Paul Wolfson, who has argued 20 cases before the Supreme Court and clerked for Justice Byron White, said the provision in the ACA which expands Medicaid, the federal-state health insurance program for low-income people, is more significant than many observers have noticed.

“In terms of the progressive policy objective of making health care universally accessible and affordable to all Americans, the expansion of Medicaid is equally as important, if not more important” than the insurance purchase mandate that most commentators have focused on.

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That provision expands the Medicaid-eligible population by one-third and imposes a uniform income eligibility standard in every state (135 percent of the federal poverty line) -- which means that middle-class people in poorer states will be covered. The states challenging that part of the ACA claim that they are being coerced into going along with the Medicaid expansion, even though most of the most is being borne by the federal taxpayers.

Washington attorney Walter Dellinger, a former acting solicitor general during the Clinton administration and a supporter of the ACA, hazarded the guess that the justices will affirm the health care law.

“I’m wondering whether the court might possibly do something undramatic” and that would be to focus on the government’s argument that a person is complying with the law if he pays the penalty for not purchasing health insurance. Since the penalty (or tax) for not buying insurance is so small, Dellinger said, a majority of the justices might see it as not too much of an infringement on individual rights. “The penalty is OK, but the mandate isn’t” because it “would preserve the idea that you can’t be forced into a transaction” is how Dellinger summed up this possible ruling. That, he said would leave the law intact.

But another lawyer on the ACS panel, Patricia Millett, a former lawyer in the solicitor general’s office during the Clinton administration who has argued 31 cases before the high court, said it was clear from the justices’ questions during oral argument that the difficulty of removing one section of the law which the court found to be unconstitutional without damaging the rest was weighing on their minds: “Do we then create a Frankenstein of a statute that functions in a way that Congress would have never wanted?”

Looking to the new term that begins in October, Dellinger said it’s likely the court will address the constitutionality of Section 3 of the 1996 Defense of Marriage Act, which defines marriage in federal law as the union of one man and one woman. He said that provision of DOMA undermined the existing laws in a handful of states that do allow same-sex couples to marry -- because it deprives those couples of federal benefits, including those protected under the federal estate and gift tax exemption.

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He was bullish on the court striking down Section 3 of DOMA: “The DOMA case is a very powerful case to go to the Supreme Court because states’ rights and gay rights are on the same side.”

Dellinger said it was “a troublesome fact” that the ideological alignment on the court was so often the five appointees of Republican presidents (Scalia, Kennedy, Clarence Thomas, Samuel Alito and Chief Justice John Roberts) opposing the four justices appointed by Democratic presidents (Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan). “For the first time in my lifetime, we have an alignment of ideology and political party,” he said. Formerly there would be at least a few justices such as Byron White who, although being appointed by a Democratic president, turned out to be conservative on some issues, or like John Paul Stevens who although appointed by a Republican president turned out to be liberal on some issues.

But former Solicitor General Paul Clement, who argued both the Arizona immigration case and the ACA cases before the court, pointed out that in the current term of the court there have been several unanimous decisions such as in the Texas redistricting case, a religious freedom case, a search-and-seizure case including GPS devices, and a major environmental case on the Clean Water Act.

These were “tremendously important and consequential cases,” Clement said --  all were voted 9-0 by the justices.