Health-Care Reform's Supreme Court Showdown

07.02.12

The Right-Wing Backlash Against John Roberts

The GOP’s delusional conspiracy theories about the chief justice’s health-care ruling is yet more evidence that this is a party now loyal only to its own self-righteous dogmatism, says Robert Shrum.

The reaction to Chief Justice John Roberts’s majority opinion on health-care reform suggests that the GOP is morphing into the Monster Raving Loony Party—which actually exists in Britain but has never won a seat in Parliament. It also provides more evidence for the delusional conviction of today’s Republicans that they are ordained to rule—and if they don’t, it’s because of conspiracy, betrayal, and the sinister subversion of what they see as American ideals and the ideal America.

The editorial page of The Wall Street Journal, which channels a combination of its owner, Rupert Murdoch, and its ideological heroes, from Friedrich Hayek to Robert Bork, said Roberts had been “intimidated” by “the political class and legal left” and “swayed from [his] constitutional duties.” The chief justice was criticized for caring about the perceived legitimacy of the Supreme Court, which presumably is and should be one of his most important responsibilities.

The columnist Charles Krauthammer had already accused President Obama of “bully[ing]” the court after the administration had “lost” the oral arguments on the Affordable Care Act. It was a preemptive critique that ultimately proved to be remarkably unprescient. In any event, what terrible vengeance could Obama and his allies inflict on the court if the statute was overturned?

This kind of whining was at the milder end of the loony spectrum. Right-wing radio talker Michael Savage claimed that Roberts’s epilepsy medicine had triggered “cognitive dissociation in what he is saying.” Glenn Beck called the chief justice a coward. There were calls for his impeachment.

Republican politicians eagerly joined in. Louisiana Gov. Bobby Jindal, a prospective Romney running mate, said Roberts was “just playing to the editorial pages of The Washington Post and The New York Times,” recycling the shibboleth about the nefarious influence of the so-called liberal media—which incidentally is no longer an apt description of the Post’s editorial page. Kentucky Sen. Rand Paul picked up the decades-old mantra of massive resistance to the court’s decisions on immigration and declared that the justices can’t decide what’s constitutional. And House Majority Leader Eric Cantor denounced the “black robes” for what they had just done to America. One is tempted to respond: better that than the white robes who once gathered at night in Cantor’s Virginia.

Mitt Romney, who apparently learned constitutional law at the Harvard Business School, or studied it in-between job destruction and offshoring deals, confidently proclaimed that health-care reform should have been thrown out: “I disagree with the Supreme Court’s decision.” He promised to get rid of Obamacare on “day one” of his presidency, a constitutional and political impossibility. Not to be outdone, House Republicans pledged to vote again this month on repeal, a political stunt that will have no effect other than to distract the House from dealing with jobs and the economy.

Hell hath no fury like a Tea Party GOP steamed that a majority of the Supreme Court refused to drink the right-wing Kool-Aid. Isn’t it conceivable that the Republicans lost the case on the merits, just as they lost fair and square in Congress on the stimulus, financial reform, and the health-care law itself? That view is essential to a functioning democracy, but alien to an opposition now loyal only to its own self-righteous dogmatism.

The beast must be fed; Republican politicians have to satisfy a base that rejects anything and everything that comes from Obama as fundamentally un-American.

In that spirit, conservatives spun out an explanation, a sinister one, for what Roberts did. In a Washington Post article on “second-guessing” the ruling, “some” commentators contended that Roberts switched sides after originally intending to vote against health-care reform. Their proof? The wording of the opinions. Fox News happily propagated the theory, citing the fact that Justice Ruth Bader Ginsburg’s concurrence was referred to as a “dissent” in the dissent—which, therefore, must have been the majority opinion before Roberts apostatized.

In fact, in her concurrence, Ginsburg also was dissenting from the chief justice’s ruling that the Affordable Care Act could not be upheld under the congressional power to regulate commerce. That ruling, for which there was a five-person majority, may have laid the rationale for blocking future progressive measures. Roberts’s opinion was genuinely conservative; as John O’Quinn, an official in the Bush Justice Department, said, “I read the opinion ... and realized that it was filled with thoughtful reasoning.”

This weekend, CBS reported an unprecedented “leak,” presumably from sore losers inside the court—where else could it come from?—that Roberts had switched his vote a month ago. The right appears ready to shred any institution and promote any myth to assure its success or explain its failures. But the conspiracy theory that the chief justice changed or “capitulated,” as The Wall Street Journal alleged, is confounded by the reality, too little noticed at the time, that he previewed the guiding principle of his decision during the oral arguments in March. He told a counsel for the plaintiffs challenging the law: “The idea that the [individual] mandate is something separate from whether you want to call it a penalty or a tax doesn’t seem to make much sense.” That’s exactly the grounds on which he validated health-care reform—the clearly constitutional authority of Congress to levy a tax, in this case on those who don’t purchase health-care coverage.

As the right wing backlash raged, Roberts, who was preparing to leave for a meeting in Malta, joked to a conference of judges and lawyers that he was headed for “an impregnable island fortress. It seemed like a good idea.” The rest of America is left to contend with a Republican Party whose attitude seems to be “my way or it was highway robbery,” a party that sees intrigue in every issue and a plot in every Obama policy, or even in his mere presence in the White House.

Thus we witness the spectacle of Romney cozying up to the nation’s leading “birther,” the self-caricature named Donald Trump. And on the same day the court ruled on health care, the House GOP embraced the racist-tinged notion that Attorney General Eric Holder was in contempt of Congress for declining, at the president’s order, to turn over privileged documents from the executive branch about gun-trafficking operations designed to entrap drug gangs in Mexico. The tactic was initiated under the Bush administration and stopped by Holder. But his chief antagonist, Rep. Darrell Issa (R-Calif.), the richest member of Congress, who made his fortune in car alarms, is ready to run over the separation of powers in headlong pursuit of political gain or political revenge—and, I now think, out of sincere faith in his own fevered fantasy.

Similarly, the GOP is in thrall to fantasy about the economy, that the answer to a lack of demand is to cut spending and reduce demand, and that “big government” is a liberal conspiracy that prevents a return to prosperity. And the Republican attacks on the health-care bill are replete with paranoia about rationing and death panels. The party has waged total war against the very health-care reform it proposed as an alternative to Clinton Care, and which Romney passed in Massachusetts.

It’s hard to credit the presumptive Republican nominee’s thin and labored distinctions between Obamacare and Romneycare. Or to assume that he believes in the addled and simplistic economics of austerity that would drive the nation back into recession. After all, Romney really did study Economics 101.

But the beast must be fed; Republican politicians have to satisfy a base that instinctively, bitterly, rejects anything and everything that comes from Obama as fundamentally un-American. Many in that base just can’t abide an African-American in the White House. For them, the anti-Vietnam War Bill Clinton was an illegitimate president and Obama even more so, because Republicans have a natural right to rule in the name of the old majority that is fading away as America becomes a majority of minorities, patriotic but no longer a patriarchy, a nation, too, of immigrants and gays.

The resulting backlash to this, the grievance and paranoia, have been harnessed to the self-interest of plutocrats like the Koch brothers, the supermen of the super PACs. They don’t share or care about the Snopesian reflex against diversity and equality, except as it suits their own ends. They play on it to trick people into voting against themselves, against their own economic prospects, in order to restore the era of the robber barons.

As this conspiracy-ridden, billionaire-fueled process strengthens its hold, the Raving Loony Party has turned on its own history. Recall the achievements of modern Republican presidents. Dwight Eisenhower built the interstate highway system; today’s GOP reviles any such large-scale investment in infrastructure as profligate government excess. Richard Nixon’s Environmental Protection Agency—and it’s irrelevant whether he really cared about the issue or simply compromised—is now a Republican target for disempowerment, dismemberment, or outright extinction. Immigration reform that provides a path to citizenship, negotiated with Ted Kennedy and signed into law by Ronald Reagan in 1986, is a mortal sin that must never be repeated. And George H.W. Bush’s agreement to increase taxes, as critical as Bill Clinton’s economic plan was in achieving the balanced budget of the late 1990s, is a cardinal heresy.

Reagan, the great tax cutter, also raised taxes when it was in the national interest. He worked with House Speaker Tip O’Neill to save the greatest entitlement program of all, Social Security. The Republicans of 2012 fervently invoke Reagan’s name, but in policy and character, they are the true RINOs—Reaganites In Name Only.

Look at the extremist and visciously dysfunctional congressional GOP. Recall the pander-fest in the Republican presidential primaries to the darker side of the electorate. Count the continuing obsession with conspiracy, the dominance of fantasy, the exploitation of prejudice and alienation. This is what has happened to one of our two great political parties—and a party that can’t govern its own feral instincts can’t govern America.

In the health-care reform case, Chief Justice Roberts kept his head. Today’s GOP is the party that has lost its head.