We don’t know how the Supreme Court will rule on the Affordable Care Act, but if it chooses to overturn the law, E.J. Dionne’s assessment  of the court’s behavior this week will look very apt:
This is what conservative justices will do if they strike down or cripple the health care law. And a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology.
Taken in isolation, a decision to cripple or overturn the health care law is objectionable—the mandate falls within Congress’s established power to regulate interstate commerce, and the theoretical argument against it proves too much—but doesn’t necessarily threaten the Court’s legitimacy. Supreme Court justices are human, and this wouldn’t be the first time that they made an ideologically-driven decision. But if you place the Court’s (potential) action against Obamacare in the context of the last two decades, then it paints a more alarming picture.
In 1992, a Democratic president was elected for the first time in more than a decade. Almost immediately, an invigorated right-wing—driven by anger at the previous Republican president—tried nearly everything in its power to derail Bill Clinton’s first term. Soon thereafter, they won an unprecedented victory in the House of Representatives and doubled-down on their efforts, resulting in a government shutdown. But this backfired, and public disgust (coupled with a rapidly improving economy) put that president back into the White House for a second term.
Of course, this couldn’t stand at all, and over the next three years, the right-wing and its allies in Congress launched a baseless witch hunt against the president, culminating in impeachment over the “scandal” of lying about an affair (distasteful, but not illegal). Unfortunately for the right, Clinton managed to hang on and finished his presidency as one of the most popular figures in American politics.
Luckily for conservatives, they had a second chance at sabotaging a Democratic politician. Rather than allow the state of Florida to continue its recount in the 2000 election, the Supreme Court effectively ruled that Florida should just give the election to George Bush. This was a nakedly partisan decision , and the movement conservatives on the Court knew it—they all but said that this was a one-time event that shouldn’t be held as precedent.
After eight years of a Republican presidency, a Democrat won—again—and this time with a solid majority of the popular vote. Moreover, he came in with huge majorities in Congress and a real sense that the public was on his side. Even still, conservatives rallied to deny him forward movement, using procedural rules to block legislation and nominees, then blaming the president for the resulting gridlock and inaction. When, in spite of this, Democrats managed to pass a historic piece of legislation—the Affordable Care Act—which guaranteed health care coverage for every American, the right-wing immediately attacked it as unconstitutional, ignoring both its origins in conservative think-tanks, and the fact that the structure of the bill was pioneered by a Republican governor.
What is more, by this point in time, the right wing had gained control of the Republican Party as well as a critical number of votes on the Supreme Court, which brings us to this week, where it became clear that those justices are willing to overturn the bill for the sake of an ideological victory.
To me, this isn’t the story of a well-functioning political system—it’s an attempt to deny legitimacy to one side of the political spectrum whenever it gains power. Short of forfeiting elections–or passing right-wing legislation—there’s nothing that Democrats can do to satisfy movement conservatives. Duly elected Democratic presidents are attacked as illegitimate—Barack Obama had to show the public his birth certificate—and legislation passed by duly-elected Democratic lawmakers is attacked as unconstitutional.
A lot of progressives have responded to the Court’s conservatives with a promise to double down and push for single-payer health care in the years and decades to come. But if this is what we’re dealing with—a powerful right wing that doesn’t accept the legitimacy of liberal lawmakers or ideas—then I’m honestly doubtful whether there’s anything we do that can pass constitutional muster with the opposition. Put another way, just because conservatives decide Medicare is constitutional now doesn’t mean that they’ll feel that way if liberals manage to create Medicare-for-all.
The broader question, I suppose, is this—if our majorities don’t count, and our laws don’t either, then what does?