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“Delivering The Promised Conservative Paradise?”: The Supreme Court Is Poised To Deliver Conservatives A String Of Big Victories

The Supreme Court’s new term begins today, and it brings with it a paradox. On one hand, the Court is poised to deliver conservatives a string of sweeping, consequential victories on issues covering a wide swath of American life. On the other, conservatives are up in arms about how they’ve been betrayed by the Court, and particularly by Chief Justice John Roberts, despite the fact that Roberts has in all but a couple of cases been as reliable a conservative vote as they could have hoped for.

Let’s look at what’s coming. Among the cases the Court will be hearing are an affirmative action case involving the University of Texas, a case asking whether congressional districts must adhere to a “one person, one vote” standard, a case testing state restrictions meant to shut down abortion clinics, a case asking whether public-sector unions can require non-members who benefit from their collective bargaining to contribute to those efforts, and yet another lawsuit challenging the Affordable Care Act’s contraception provision.

While a couple of them may be in doubt, it’s entirely possible that by the time this term ends next June, the Court will have driven the final stake into affirmative action, struck a fatal blow against public-sector unions, enhanced Republican power in legislatures by reducing the representation of areas with large Hispanic populations, given a green light for Republican-run states to make abortions all but impossible to obtain, and undermined the ACA. Even if one or two of those don’t  go how Court observers expect, it’s almost certainly going to be a great term for Republicans.

And while they’ve had a couple of recent high-profile defeats at the Court, conservatives have enjoyed a conservative majority for a couple of decades now. Yes, Anthony Kennedy sometimes joins with liberals, as he did in the case legalizing same-sex marriage. But just in the last few years, they’ve seen the doors of campaign finance thrown open to unlimited spending by corporations and billionaires; the Voting Rights Act gutted; affirmative action all but outlawed; an individual right to own guns created for the first time in American history; corporations granted religious rights to exempt themselves from laws they don’t like and sectarian prayer allowed at government meetings; unions undermined and employment discrimination suits made more difficult; and a whole series of less well-known decisions that enhance the power of the powerful, whether it’s the government or corporations.

Nevertheless, when you hear conservatives talk about the Court, they don’t say, “We need to make sure we get more conservative justices to keep winning.” Instead, they say, “We’ve been betrayed!” So what’s going on?

There are a couple of answers. The first is that they’re demanding not just a record of wins, but absolute perfection. They want not justices who will bring a conservative philosophy to the Court, but justices who will never stray from whatever it is the Republican Party wants at a particular time. The recent decision in King v. Burwell is a perfect example: the lawsuit itself was a joke, based on a series of claims about the Affordable Care Act that ran from the clearly false to the laughably ridiculous. When John Roberts sided with the majority to dismiss it — despite a long record of being on the “right” side of all the cases I mentioned above, plus many more — they declared him to be an irredeemable traitor.

The second reason is that narratives of betrayal are central to how conservatives understand history. Whenever events don’t turn out as they would like, whether it’s a foreign war or a lost election or a societal evolution, the story is always the same: We were betrayed, either by our opponents or by the people we thought were our allies. Was the Iraq War a terrible idea? No, we had it won — until Barack Obama betrayed us by pulling out. Why was George W. Bush so unpopular? Because he betrayed conservative principles by not cutting spending more, just like his father betrayed us by raising taxes (while the younger Bush was still president, longtime conservative activist Richard Viguerie wrote a book entitled “Conservatives Betrayed: How George W. Bush and Other Big-Government Republicans Hijacked the Conservative Cause).” As Digby memorably wrote, “Conservatism cannot fail, it can only be failed. (And a conservative can only fail because he is too liberal.)” And it goes back as far as you want. Why did the Soviet Union come to dominate Eastern Europe? Because FDR betrayed us at Yalta.

It isn’t that there’s never any truth in this story, particularly when it comes to the Court. David Souter, for instance, turned out to be a genuine liberal, not at all what Republicans expected when he was appointed by George H. W. Bush. But they’ve gotten so used to the betrayal narrative that they place even a single setback into it. Which may explain why conservative opinions of the Court have changed so dramatically in recent years. According to Pew polls, in 2008, 80 percent of Republicans approved of the Supreme Court, compared to 64 percent of Democrats. By 2015, the views of Democrats hadn’t changed — their approval was at 62 percent. But Republican approval had fallen to 33 percent, despite all they had won at the Court over that time. A full 68 percent of conservative Republicans call the Court “liberal,” an idea that is absurd by any objective measure, but one that is regularly fed by conservative media and Republican politicians.

To be clear, Republicans are right to focus on the Supreme Court during the campaign, and Democrats ought to as well. As I’ve argued before, there may be no single issue more consequential for America’s future in this election than what will happen to the Supreme Court in the next four or eight years. But Republicans aren’t just arguing that it’s important for them to elect a Republican so they can get friendly justices, they’re arguing that even Republican presidents and Republican-appointed justices can’t be trusted not to turn into judicial Benedict Arnolds.

If you’re someone like Ted Cruz, this idea fits in nicely with the rest of your message, at least during the primaries: the real enemy isn’t the Democrats, it’s the feckless and unreliable Republican establishment that has failed to deliver the conservative paradise we were promised. Which is why no one is louder in condemning Roberts than Cruz (who supported Roberts wholeheartedly when he was nominated). But I wonder, will they change their tune when the Court gives them one victory after another over the next nine months?

 

By: Paul Waldman, Senior Writer, The American Prospect; The Plum Line, The Washington Post, October 6, 2015

October 7, 2015 Posted by | Conservatism, Conservatives, John Roberts, U. S. Supreme Court | , , , , , , , | 1 Comment

“GOP Failure Theater”: How Conservatives Convinced Themselves That Another ObamaCare Loss Is Just Prelude To Greater Victory

There’s a ritual carried out by losing candidates on election night, in which they come before their supporters gathered in a hotel ballroom, look out at all the long faces and tired eyes, and say, “This has been a noble crusade. And though we may have lost today, the battle for the things we believe in goes on. I’ll be there fighting for that vision, and I hope you’ll be there with me.” Everyone applauds, and then they all go home.

Now that the Supreme Court has ruled against what was simultaneously the most absurd and the most threatening challenge to the Affordable Care Act, conservatives are enacting something similar to that election night ritual. In private, many are expressing relief, since there was widespread worry that if the King v. Burwell lawsuit had succeeded, they would have been responsible for at least six million Americans losing insurance subsidies, and quite appropriately gotten the blame for it. But what are they saying publicly?

The politicians are finding virtue in consistency; their line is that this changes nothing.

“Today’s ruling won’t change ObamaCare’s multitude of broken promises,” said Mitch McConnell.

“ObamaCare is fundamentally broken,” said John Boehner. “Today’s ruling doesn’t change that fact.”

“Today’s ruling makes it clear that if we want to fix our broken healthcare system, then we will need to elect a Republican president,” said RNC chair Reince Priebus, who also made the fascinating observation that a Hillary Clinton presidency would be terrible for America.

Naturally, conservatives are disgusted with Chief Justice Roberts, whom they regard as an unreliable ally, unlike Justices Scalia, Thomas, and Alito. Quin Hillyer of the National Review summed up their feelings: “He is a disgrace. That is all.” But as far as conservative commentators are concerned, the perfidy extends beyond the Supreme Court to the cowards and quislings in Congress. And so, in a particularly optimistic strain of thought, they’re arguing that the decision is really an excellent outcome.

That’s because it has saved the right from another round of what blogger Allahpundit calls “GOP failure theater,” in which Republicans in Congress “make a pretense of putting up a fight in hopes that conservative voters will be impressed and to obtain some sort of mostly meaningless concession to wave at them when the inevitable, and predestined, cave finally happens.”

Similarly, Ben Domenech argues that the decision is a good thing for conservatives, because now Republican candidates will have to come up with really good health care plans to enact when they take back the White House: “Thus, I think the ruling today probably increases the likelihood of repealing ObamaCare in 2017 by a not insignificant margin.” On a similar note, Bill Kristol tweeted, “Repeal of ObamaCare and replacement with limited-government alternative in 2017 will be one of modern conservatism’s finest hours.”

That presumes that the Republican nominee will win, of course. But it also presumes that he would have the ability and willingness to repeal the ACA upon taking office.

There’s no question that the Republican presidential candidates will continue to express their eagerness to do so, at least until we get to the general election. Though none of them has anything resembling a fully-formed plan for the “replace” part of “repeal and replace” that Republicans have been advocating for years, they still have to pay lip service to the idea that the consensus conservative health care plan is coming any day now. When you’ve spent the last five years arguing that this law is a poison-tipped dagger plunging into liberty’s heart, you can’t just say, “Eh, looks like we’ll live with it,” no matter what the practical reality might be.

The practical reality is that whatever public opinion may be about this large abstraction called “ObamaCare,” the law is delivering particular benefits of which Americans are quite fond and that they don’t want to lose. Taking away those subsidies through a lawsuit would have been a political disaster for Republicans, and that would have affected only a portion of the public. What if Republicans were to take away subsidies from people in all 50 states, and toss millions more off Medicaid, and make it so that now insurance companies can deny you coverage because of a pre-existing condition again? That’s what repealing the ACA would mean. Republicans may not be able to admit it, as they promise that their phantom alternative plan would take care of all that, but they know that just undoing the ACA would be a disaster.

They can’t acknowledge that fact, because they have a constituency that has been fed heaping plates of apocalyptic rhetoric on this issue ever since the ACA became law. Those Republican base voters need to be told that, though they’ve suffered a loss, the fight is not over. As Ted Kennedy said 35 years ago in what may be the prototypical example of that losing candidate’s speech to his dismayed supporters, “the work goes on, the cause endures, the hope still lives, and the dream shall never die.”

 

By: Paul Waldman, Senior Writer, The American Prospect; Contributing Writer, The Week, June 25, 2015

June 26, 2015 Posted by | Affordable Care Act, Conservatives, GOP | , , , , , , , , | 1 Comment

“Antonin Scalia’s ‘Interpretive Jiggery-Pokery'”: With Increasing Frequency, Scalia’s Reputation Continues To Deteriorate

Two years ago tomorrow, the U.S. Supreme Court struck down the Defense of Marriage Act, much to Justice Antonin Scalia’s chagrin. Adding to his greatest-hits list, the far-right jurist called the majority’s rationale “legalistic argle-bargle.”

Today, as my msnbc colleague Irin Carmon reported, Scalia was once again in rare form today in his King v. Burwell dissent.

Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented. Writing on their behalf, Scalia accused the majority of acting in bad faith just to save the law. “So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare,” Scalia wrote in the dissent. He said Roberts’ reasoning was an act of “interpretive jiggery-pokery.”

No, seriously. Scalia actually used the phrase “interpretive jiggery-pokery.” It’s on page 8. Two pages later, he published the phrase “pure applesauce” as a complete sentence.

The justice has been embarrassing himself with increasing frequency, but Scalia’s reputation continues to deteriorate further.

The broader point, however, is less about the justice’s strange word choice and more about his increasingly twisted approach to the law.

The dissent in King is literally hard to believe. On page 17 of the majority opinion, Chief Justice John Roberts even mocks the dissenters for making the opposite conclusion that they drew three years ago:

“It is implausible that Congress meant the Act to operate in this manner.   See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___ (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 60) (“Without the federal subsidies … the exchanges would not operate as Congress intended and may not operate at all.”).

It’s no small detail. Three years ago, when the Affordable Care Act’s constitutionality was challenged, Scalia, Clarence Thomas, and Sam Alito read the law in such a way as to see all eligible consumers receiving subsidies, regardless of state or federal exchanges. In today’s dissent, these three had to read the law in the polar opposite way.

And therein lies the point: it seems as if the dissenting justices were so eager to rule against “Obamacare” that they were willing to ignore legislative history, legislative intent, context, and their own beliefs from three years ago.

I’m also reminded of this Linda Greenhouse piece from February.

Statutory interpretation is something the Supreme Court does all the time, week in and week out, term after term. And while the justices have irreconcilable differences over how to interpret the Constitution, they actually all agree on how to interpret statutory text.  […]

Every justice subscribes to the notion that statutory language has to be understood in context. Justice Scalia said it from the bench just last month, during an argument about the proper interpretation of the federal Fair Housing Act. “When we look at a provision of law, we look at the entire provision of law, including later amendments,” Justice Scalia said. “We try to make sense of the law as a whole.” … Across the ideological spectrum, the court’s opinions are filled with comments like Justice Scalia’s.

Today, Scalia threw all of that out the window, saying what matters isn’t the entire provision of law, but how he could take half a sentence out of context to undermine a law he doesn’t like.

“Words no longer have meaning,” Scalia whined today. In reality, words are still fine. What lacks meaning are Scalia’s unhinged complaints.

 

By: Steve Benen, The Madow Blog, June 25, 2015

June 26, 2015 Posted by | Affordable Care Act, Antonin Scalia, SCOTUS | , , , , , , , , | Leave a comment

“The ‘I Don’t Wanna’ Caucus”: Who The Hell Gave Republicans A Monopoly On Morality And Spending Of Public Dollars?

Of all the arguments put forth against everything from the Affordable Care Act to social safety net programs, the “I don’t want to pay for X” argument from the right has to be the most asinine. The upcoming decision on the Supreme Court’s King vs. Burwell case – which could yank subsidies out from under anyone using the federal health care exchange – is a prime example.

As Robert Schlesinger has pointed out, the lawsuit’s proponents are relying on a known falsehood about the intent of the law because they don’t want taxpayer support going to people who otherwise couldn’t afford health insurance. It’s “I Don’t Wanna” as a Supreme Court test case.

Newsflash to the right: I don’t want to pay for a lot of things either, starting with Exxon subsidies, Bush’s wars and the millions we paid to sociopaths to come up with torture techniques for the CIA. Who the hell gave you a monopoly on morality when it comes to spending public dollars? Do you think you’re the only ones who object to where our tax dollars go? Because if we only have to pay for the things of which we approve, I’ve got a long veto list.

The I Don’t Wanna Caucus is willfully oblivious to the fact that a whole lot of people pay for them, too. Texas is more than happy to accept Federal Emergency Management Agency money – they actually got more than any other state in 2011 and 2012 – at the same time Texas Gov. Greg Abbott deploys the state guard against an imaginary Obama takeover and sues the federal government over the environment and health care.

Here in Colorado, as the Colorado Springs Gazette has reported about its home of El Paso County, “The county is more dependent on federal money than most other places in Colorado and the nation … Federal spending accounts for one-third of the local economy.” Yet Colorado Springs would rather have its parks go brown and its streetlights fade than increase taxes locally to pay for them.

The I Don’t Wanna Caucus is not only ideologically hypocritical, it’s also irresponsible. The I Don’t Wanna Caucus of Colorado Senate Republicans killed our highly-successful program that slashed the teen birth and abortion rate by providing free long-acting reversible contraceptives to low-income women. Every $1 invested in the program saved the state $5.85 in Medicaid costs. The Colorado Department of Public Health and Environment estimates that the program could have saved Colorado $49 million to $111 million in Medicaid dollars per year in birth-related costs.

Likewise, insurance is cheaper than no insurance. People without insurance end up in the emergency room, where they have to be treated and where the cost shifts onto someone else. Guess who pays for that? People with insurance. But now, thanks to the Affordable Care Act, hospitals saved at least $7.4 billion in 2014, according to the Department of Health and Human Services.

All of us have someone else paying for us in some form or another, through paved roads and clean drinking water and home mortgage tax deductions. Those of us without kids subsidize schools and teachers for other people’s children. Living in a civilized society means we all share in the cost and responsibility. Living in a civilized society also means we all pay for things we find morally objectionable – conservatives and liberals alike.

Because the alternative – the I Don’t Wanna Caucus – doesn’t belong in a first world country.

 

By: Laura Chapin, U. S. News and World Report, June 12, 2015

June 13, 2015 Posted by | Conservatives, Public Spending, Taxpayers | , , , , , , , , | Leave a comment

“The Right’s Collective Amnesia And Fantasia”: Former Republican Senator Admits The Obamacare Court Challenge Is Built On Lies

For months, when the Affordable Care Act was still swimming upstream through the legislative process, President Barack Obama and Senate Democrats courted Senator Olympia Snowe, a Republican from Maine, thinking she would respond rationally to enticements and provide Democrats bipartisan cover to reform the U.S. health insurance system.

Their efforts ultimately failed. Snowe, like every other Senate Republican, voted against the health reform bill in 2009 and 2010, and then joined Republicans in their various efforts to undermine or repeal the law, until she retired in 2013.

But now it looks like all the time Democrats wasted on negotiating with Snowe, and allowing her to help shape the legislation, has paid off. Snowe has, to my knowledge, become the first contemporaneous Republican senator, current or former, to acknowledge that a Supreme Court challenge meant to cripple Obamacare is built on a tissue of lies. If the Court sides with Obamacare opponents, her comments will become incredibly relevant to the ensuing political shitstorm.

“I don’t ever recall any distinction between federal and state exchanges in terms of the availability of subsidies,” Snowe admitted, according to New York Times health reporter Robert Pear.

“It was never part of our conversations at any point,” said Ms. Snowe, who voted against the final version of the Senate bill. “Why would we have wanted to deny people subsidies? It was not their fault if their state did not set up an exchange.” The four words, she said, were perhaps “inadvertent language,” adding, “I don’t know how else to explain it.”

There are two intersecting argumentative threads that one must untangle to really understand King v. Burwell. The first, specialized one addresses the question of what the text of the Obamacare statute means. Does it, in all its interlocking, cross-referenced parts, provide authorization for the IRS to issue subsidies to all exchanges? Or does it prohibit those subsidies in the three dozen states that have availed themselves of federal fallback exchanges, through Healthcare.gov? Only the most cribbed reading of the law—literally less than a sentence of the whole text—suggests the latter.

The second thread is, if anything, even more straightforward: What were the framers of the Affordable Care Act trying to do? Were they trying to stitch together a harmonious system across all state borders, with subsidies available everywhere? Or were they trying to coerce states into setting up their own exchanges by threatening to withhold subsidies from their citizens, and impose chaos on their insurance marketplaces? There is no evidence to suggest that the goal of the Affordable Care Act was the latter.

These threads invariably become entwined for two reasons. First, if Congress was trying to create an incentive for states to set up their own exchanges, then its failure to provide those states clear notice of the threat in the law raises serious constitutional concerns. But also, judges have consciences and intellectual standards, too, and may in some cases allow their understanding of the political history of the Affordable Care Act to influence the way they think about what the text of the law actually conveys. This explains why conservatives have been engaged in a year-long campaign to revise the history, and assert that the framers of the ACA knew all along that threatening the states would leave the law vulnerable to ruin, but did it anyway.

Pear’s article largely elides the textual question—if anything, it proceeds from the assumption that Obamacare opponents have a better legal case than they really do. But at the same time, it is devastating to the spin that Republicans are putting on the ACA’s history to bolster the plaintiffs in King.

Here, for instance, is Snowe’s erstwhile colleague, Senator Orrin Hatch, who served with Snowe on the committee that drafted Obamacare, claiming that the law’s drafters, not its enemies, are falsifying the historical record to influence judges.

“The Democrats were arguing that the only way to get the states to sign up is to put the pressure on them by making them have to do a state exchange, so it’s kind of disingenuous for them to come in now and say they didn’t mean that,” Hatch told reporter Todd Zwillich in this DecodeDC feature. “I’m not the only one that knows that. Their attitude was, you’ll never get all the states to sign up if you don’t force them. Yeah, I don’t think there’s any doubt in the Democrats’ minds they wanted to do that because they were afraid the states wouldn’t form their own exchanges. Now they’re trying to say they didn’t say that, but they did.”

With respect to King, almost every Republican member of Congress is, like Hatch, caught in the grip of the right’s collective amnesia and fantasia. The spectacle of it is breathtaking to sentient observers of the health reform process, but ultimately meaningless if the Supreme Court does the right thing in June, and rules for the government. If it doesn’t, the textual argument will effectively be over. But, for the purposes of reading such a bad decision into its proper context, addressing the ensuing chaos, and clarifying for the record for the public, the historical argument will take on even greater significance—which makes Snowe’s contribution extremely valuable.

 

By: Brian Beutler, Senior Editor, The New Republic, may 27, 2015

May 28, 2015 Posted by | Affordable Care Act, Health Exchanges, Olympia Snowe | , , , , , , | 1 Comment

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