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During the Barrett hearings, @mattyglesias asked a good question: Why are Republican senators so confident the Supreme Court won't strike down the ACA, when that's what a bunch of red-state AGs want and the White House want -- and the White House has picked the refs?
It's a good question, I don't think the case’s doctrinal weakness is what most sharply distinguishes it from the first Obamacare suit. Indeed, the arguments are coherent enough to have persuaded each of the three Republican-appointed judges who have heard the case so far.
The biggest difference is that the conservative political establishment that did so much to make the last Obamacare case seem plausible, even inevitable, has not laid the same groundwork here. The case is still off the wall.
I explain the point here: https://www.theatlantic.com/ideas/archive/2020/10/aca-politics/616821/
I explain the point here: https://www.theatlantic.com/ideas/archive/2020/10/aca-politics/616821/
Some pieces of evidence? During the first ACA case, Republican politicians couldn't stop talking about it. In 2018, it was Democrats who were bringing up the litigation. Here's Joe Manchin, shooting a copy of the complaint in his 2018 campaign. https://www.cnn.com/videos/us/2018/09/12/senator-joe-manchin-democrat-hunting-ad-healthcare-vpx.cnn
Here's Josh Hawley responding to an attack ad from Claire McCaskill. Though Hawley joined the lawsuit when he was Attorney General, he doesn't even mention it here. He just lies about his support for protections for people with preexisting conditions. https://twitter.com/hawleymo/status/1044323880389791745?lang=en
The pattern's held this year. My favorite Republican-Who-Doesn't-Want-to-Talk-About-the-Lawsuit is Senator Cory Gardner, who's released a campaign video promising to maintain preexisting-condition protections “no matter what happens to Obamacare.” https://twitter.com/CoryGardner/status/1305875612737900544
No one can pin Gardner down on whether he supports the lawsuit.
And when Democrats forced a vote on whether to bar Trump’s Justice Department from supporting the lawsuit, Gardner and five other incumbents in close elections broke from their party to side with Democrats. https://thehill.com/homenews/senate/519179-gop-rejects-schumer-healthcare-bill-amid-supreme-court-fight
So yeah, Republicans are not exactly enthusiastic here.
But what about Trump? The White House’s surprise endorsement of the lawsuit in 2018 is probably best understood as a bid to get the rest of the Republican Party to back the case -- and put it on the wall.
But what about Trump? The White House’s surprise endorsement of the lawsuit in 2018 is probably best understood as a bid to get the rest of the Republican Party to back the case -- and put it on the wall.
But that gambit has failed. The case is way too toxic for Republicans. Heck, it's toxic to Trump. Even Bill Barr (!) has told him he should back off. It's only because Trump can't be seen as backing down that he hasn't taken that advice.
And as for the red-state AGs, I think their behavior is best explained by the fact that they all want to be governor someday. That means they're going to have to win a Republican primary, and the Republican primary electorate is SUPER conservative.
So for their own personal advantage, they're pressing a position that’s bad news for Republican incumbents.
And so now congressional leaders are walking this tightrope. Without getting crosswise with the White House, they are trying to signal as loudly as they can that they would prefer the lawsuit to go away.
Which is how you get Mitch McConnell saying that “no one believes the Supreme Court is going to strike down the Affordable Care Act.” Which is a weird thing to say about a lawsuit that you supposedly support!
And the Supreme Court will *definitely* get the message. During the first Obamacare case, groups affiliated with the Republican challengers filed 59 amicus briefs -- including on from McConnell and Republican senators.
This time, there are 5. McConnell is sitting this one out.
This time, there are 5. McConnell is sitting this one out.
All of this matters! As Jack Balkin has written, the most decisive thing that moved the first ACA case from off the wall to on the wall was the full-throated support of the Republican Party. https://www.theatlantic.com/national/archive/2012/06/from-off-the-wall-to-on-the-wall-how-the-mandate-challenge-went-mainstream/258040/
His key insight? That "what people think is reasonable depends in part on what they think that other people think” -- and that the justices are people too.
To win a big constitutional case, you've got to reassure them that that the argument has enough public support that they won’t be written off as kooky or eccentric for endorsing it. And an argument can’t be crazy if half the country buys it.
The same groundwork hasn't been laid here. Striking down the ACA couldn’t be spun to the public as a principled constitutional holding. Even to Republicans, it would look like rank partisanship. And the justices know that Republicans would bear responsibility for the fallout.
Which isn't to say that the case is a sure loser. I mean, we're all just guessing here. And as I keep saying, the small risk of a bad thing is worth worrying about.
But I nonetheless think that Democrats were right to focus on the ACA during Barrett hearings. She's been pretty candid how she would've ruled the first time around. If she, not RBG, had been sitting on the Court back in 2012, the Affordable Care Act would now be in ashes.
That should teach us something about the reception that major legislation passed by a Democratic-controlled Congress is likely to receive on a 6–3 Supreme Court.
Spoiler: it's not good, people! Not good at all!
If Barrett is confirmed, the views of two-thirds of those justices will be shaped by a Republican Party that represents less than half the country.
That’s not just a problem for Democrats. It’s a problem for democracy. /fin
That’s not just a problem for Democrats. It’s a problem for democracy. /fin
