But perhaps because it's possible (a law professor I spoke with this morning who clerked for Ginsburg thinks it's about 2-1 that it will be upheld) let's imagine how to turn this no longer unimaginable lemon into a huge ice-cold fountain of minty strawberry lemonade, served in big sugar-encrusted crystal goblets, maybe even with a shot of gin...
If it loses, we will be energized like almost never before. Conservatives will lose credibility to gripe about "activist judges legislating from the bench." Anyone who cares in the least about social policy and its economic benefits will no longer be able to remain passive or on the fence. Getting a more progressive SCOTUS will be an unambiguous and urgent priority. The alienated "Obama's a corporate shill and there's no difference between the parties" crowd will be silenced. No longer will we receive the "Oh, yeah, I guess there's that" sigh from the purists.
And that energy will be fully channeled into a fight for a public health safety net, one that might lay the groundwork for a workable public option that will finally loosen the absurd tie between health care and employment. Our argument will be:
"Fine. Mandates are unconstitutional. Congress can't force people to buy a good or service on the private market. We tried the compromise designed by the Heritage Foundation. It was pragmatic and patriotic of us and our President to do so. But no one can argue that Congress does not hold the power to tax. So the only option left beside telling the uninsured sick, impoverished, and unemployed to go suck earth (which is neither the Christian way nor consonant with our fundamental American commitment to equal opportunity) is to expand medicare to cover those folks and pay for it with a tax on all Americans. It's the only way to get healthy people to pay into a necessity that they will ALL inevitably require at some point in the future."
Then perhaps large employers will look to that infrastructure and begin to support it.
It will be a longer slog. And the outcome will be unmistakably uncertain. But we'll have an unambiguous rationale for a critical issue. They will have backed themselves into a corner.
I know this may be a pipe dream. But taking the long view...