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First Thoughts: Brace yourself for another 5-4 decision

Brace yourself for another 5-4 decision… And such a decision would have two consequences: 1) feed the perception that the Supreme Court is as partisan as the other branches, and 2) satisfy no one… Yesterday was a bad day for the mandate… Team Gingrich beginning to accept reality?... New WaPo/ABC poll: Romney unfavorable rating at 50%... Boehner scolds Romney for criticizing Obama while abroad… New Quinnipiac polls: Obama leads in FL, OH, and PA… RNC staffing up in battleground states… Team Santorum narrows the ad-spending gap in Wisconsin (but just slightly)… And Biden to talk manufacturing in Iowa.

Jonathan Ernst / Reuters

Members of the public wait on the sidewalk to be allowed inside to watch the third and final day of legal arguments over the Patient Protection and Affordable Care Act at the Supreme Court in Washington, March 28, 2012.

*** Brace yourself for another 5-4 decision: Yesterday’s oral arguments at the Supreme Court raised the distinct possibility that the individual mandate -- and perhaps the entire health-care law -- could be decided by another controversial 5-4 decision. Such an outcome, especially after other 5-4 decisions like Bush vs. Gore and Citizens United, would have two potential consequences. One, it would feed the perception that the U.S. Supreme Court is as partisan as Congress and increasing parts of the media; in other words, these nine justices (either trained at liberal law schools or members of the conservative Federalist Society) are essentially political actors wearing black robes. And two and most importantly, a 5-4 decision would satisfy no one. If the court strikes down the mandate and the health-care law by that narrow margin, liberals and Democrats would blame it on the conservative justices. If the mandate and law are upheld by a 5-4 decision, conservatives would point their fingers at the liberals and the unpredictable “mushy” swing justice, Anthony Kennedy. That’s the problem with a split decision: The losers would feel like they lost on a political technicality, not because there was a legal consensus.

If the health insurance mandate is found unconstitutional, can the rest of the health care law survive? The Daily Rundown's Chuck Todd discusses.

*** A bad day for the mandate: Make no mistake: The mandate had a VERY bad day yesterday. As the New York Times writes, “Predicting the result in any Supreme Court case, much less one that will define the legacies of a president and a chief justice, is nothing like a science, and the case could still turn in various directions. But the available evidence indicated that the heart of the Affordable Care Act is in peril.” Liberals and Democrats are holding out for hope with Kennedy’s sentence at the end of yesterday (“The young person who is uninsured is uniquely, proximately, very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries”), as well as with Chief Justice John Roberts’ tough questioning of the plaintiff’s attorney. The backseat “oral arguing” on the Democratic side is quite loud; the grumbling and handwringing about Solicitor General Donald Verrilli’s apparent inability -- at some points -- to make what some folks thought were easy rebuttals to the cell phone, broccoli and funeral analogies seem to frustrate not just those in the blogosphere but also in the White House. That said, plenty of Verrilli supporters out there who say folks are overreacting and point to the tough questioning the government received on the D.C. circuit and yet they still prevailed. As our friends at SCOTUS Blog note, Verrilli had the tougher case to make; Paul Clement had the easier one.

*** Beginning to accept reality? The breaking news from last night -- that Newt Gingrich’s campaign is laying off a third of its staff, replacing its campaign manager, and lightening its traveling schedule -- signals that Gingrich is getting closer to accepting the reality of a candidate who has won just two contests. Per NBC’s Alex Moe, “Gingrich’s campaign has been struggling to stay afloat financially for several weeks — posting slightly more debt than cash on hand in the last FEC filing for February. The former House Speaker, though, continues to promise he will go all the way to the Republican convention in Tampa this August unless another candidate obtains all 1,144 delegates beforehand.” Gingrich’s travel schedule is going to be so light at times that the question is going to be asked: Is he truly an “active” candidate or closer to being a candidate that “suspends” its operation? He’s sort of in between at this point.

*** Mr. Unfavorable? A new Washington Post/ABC poll has some rough numbers for Mitt Romney: “In the new poll, 50 percent of all adults and 52 percent of registered voters express unfavorable opinions of Romney, both higher — although marginally — than Obama has received in Post-ABC polling as far back as late 2006. However, the biggest difference between Romney and Obama is on the other side of the ledger: 53 percent of Americans hold favorable views of the president; for Romney, that number slides to 34 percent.” The good news for Romney: The general election is seven months away. The bad news: It’s seven months away. By the way, the Politico story on the proposed car elevator for Romney’s oceanfront home in San Diego is another one of those bad two- or three-word story for Romney, meaning it only takes two or three words to tell a negative narrative. The others: Swiss bank account, dog on roof, Etch A Sketch -- and now “car elevator” Too be sure, Obama has his as well (Obamacare, “flexibility,” etc.). But that is a lot of negative shorthand for a potential presidential challenger at this point in time.

*** Boehner scolds Romney for criticizing Obama while abroad: This story got lost in yesterday’s news, but it was pretty significant in our eyes. NBC’s Luke Russert reported that House Speaker Boehner took a dig at Romney for criticizing Obama while he was overseas. "Clearly while the president is overseas, he's at a conference and while the president is overseas I think it's appropriate that people not be critical of him or our country," Boehner said in response to a question from NBC News about whether he agreed with Romney's assessment that Russia is the "No.1 geopolitical foe" of the United States. By the way, Romney has an op-ed in Foreign Policy Magazine -- entitled “Bowing to the Kremlin” -- that doubles down on his criticism of Obama.

*** Obama leads in FL, OH, and PA: A series of new Quinnipiac battleground state polls shows Obama leading Romney in Florida (49%-42%), Ohio (47%-41%), and Pennsylvania (45%-42%). The president also is ahead of Santorum in all three states by a slightly larger margin (50%-37% in Florida, 47%-40% in Ohio, and 48%-41% in Pennsylvania). What’s fueling Obama’s lead? Quinnipiac says it’s female voters, who back Obama over Romney or Santorum by six to 19 points in these three states. But also, don’t miss the political party fav/unfav numbers. The GOP is SO under water in all three states that its favorable rating is below 40% in FL and OH, and it’s at 41% in PA… Dems are an average of five points better in all three states. So while the Obama White House had a really bad day at the Supreme Court yesterday, it can lick its wounds with these poll numbers, plus the Washington Post/ABC survey on Romney’s standing.

*** RNC staffing up in battleground states: The Republican National Committee is beginning to deploy staffers to key battleground states, RNC Political Director Rick Wiley tells First Read. The RNC already has staff in Florida, North Carolina and Virginia, and it will send staffers to Colorado, Michigan and Nevada by April 1. And by the end of next month, it will deploy staff to New Mexico, Ohio, and Pennsylvania. Of course, the RNC is playing catch-up here to the Obama campaign’s large organizations in these states and beyond. “Every day it’s the RNC’s job to keep our sights focused on President Obama to remind voters why we need a change in the White House in November,” Wiley says. “Running against the Obama campaign that spends every moment worried about re-election, it’s important we get started building out our ground game and contacting voters now so we are ready when our nominee walks in the door.”

*** Team Santorum narrows Romney’s ad-spending edge (just a bit): Yesterday, we wrote that Team Romney (campaign plus Super PAC) had a nearly 10-to-1 advertising advantage over Team Santorum in Wisconsin. But that margin has been narrowed somewhat after the Santorum campaign placed a $143,000 cable and broadcast buy in Wisconsin. It’s now almost 5-to-1, with Team Romney at $3.1 million and Team Santorum at $670,000. And in the final week of ad spending (March 26 to April 3), it’s 3-to-1, $1.9 million vs. $624,000.

*** On the trail, per NBC’s Adam Perez: Romney raises money in Dallas, TX… Santorum holds two "Rally for Rick" events in Wisconsin, one in Sparta and the other in Onalaska… And Gingrich gives a speech at Georgetown University in Washington, DC

*** Biden to talk manufacturing in Iowa: Also today, Vice President Biden delivers the third of his campaign speeches framing the general election. Biden gives this one in Davenport, IA and the topic is manufacturing. Per the advanced excerpts, Biden will say: “I’ve come here today with a simple message:  Manufacturing is coming back. And that’s good news for America, and for America’s middle class.” More: “Mitt Romney has been remarkably consistent -- as an individual investor, a businessman, as Governor of Massachusetts, and now as a candidate for president. Remarkably consistent. Consistently wrong… When he was governor of Massachusetts, he vetoed a bill passed by the Massachusetts legislature that would have stopped the state from outsourcing contracts overseas.  That resulted in millions of dollars flowing to companies running call centers in India.” 

Countdown to DC, Maryland, Wisconsin primaries: 6 days
Countdown to Election Day: 223 days

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