GOP Losing Faith SCOTUS will Overturn Health Reform?

Republican rhetoric is clear: activist judges should overturn the democratically enacted healthcare reform legislation. And if you listen to what they say, they seem to believe that the courts may grant them their wish. But their actions are saying something different:

How much confidence does the lead filer of the lawsuit against the individual mandate have that it will prevail? Virginia, whose attorney general and governor are leading the charge, at the same time is taking definitive steps to make sure that federal health reform is implemented effectively within it's borders.

Yesterday, Gov. Bob McDonnell announced the members of a new Virginia Health Reform Initiative Advisory Council, which according to a press release will “provide recommendations to the Governor towards a comprehensive strategy for implementing health reform in Virginia.” A spokeswoman for the governor says he is "very confident" the lawsuit against the individual mandate will succeed, but for now, “We've got to make sure that we're prepared for the mandate to go through – that we put it through in ways that are best for Virginians.”

It's understandable why Virginia would go forward with preparations to implement healthcare reform legislation notwithstanding the fact that the state is suing to overturn the law. After all, the legal merits of health reform are quite clear, as explained by Jack Balkin:

There are two arguments for the constitutionality of the individual mandate. One is that the mandate is a regulation of interstate commerce; successful reform requires bringing uninsured individuals into the system because of the costs they impose on the system. Individuals who refuse to purchase insurance actually self-insure and therefore cumulatively affect commerce and Congress has the power to reach their conduct in order to make insurance reform work. The second argument is that the mandate is structured as a tax and gives individuals a choice whether to pay taxes or purchase health insurance.

This is all to say, Virginia's effort to get the courts to step in isn't terribly likely to succeed. What is more, on a political level, while it may fire up the Republican base to wage battle in the courts against health reform, overall opinion towards the legislation is improving markedly: polling from the Kaiser Family Foundation last month found rising support for the health bill, with 50 percent viewing it favorably and just 35 percent viewing it unfavorably. Even Fox News polling (.pdf) has consistently shown just 36 percent of registered voters nationwide favor repealing healthcare reform. So while the GOP may talk a good game on repeal, quietly the party moves forward in acceptance of Barack Obama's signature legislation.