Construction Literary Magazine

Winter 2018

Drifting Right

Drifting Right

Photograph via Slate

Last week’s oral argument led many legal commentators to conclude that President Obama’s health care reform law is either likely to or at least in danger of being ruled unconstitutional by the five conservative justices on the Supreme Court. President Obama responded with a pre-emptive strike, warning about the danger of unelected justices substituting their judgment for Congress’s and overturning “a duly constituted and passed law.” This is not the first time the president has waged a public battle with the Court. In his 2010 State of the Union, the president criticized the Court’s conservative majority for overreaching in its campaign-finance decision, Citizens United. This public rebuke “troubl[ed]” Chief Justice John Roberts (and seemed to particularly annoy Justice Samuel Alito).

The brewing war between the president and the Roberts Court provides a useful opportunity to talk about both political division in America and the rightward drift of our governing institutions. Both Chief Justice Roberts and President Obama entered their current position promising to seek, and achieve, consensus. Yet both men have been polarizing figures, and they—and particularly the signature actions of their respective tenures—are viewed by their opponents as radical. The difference is that only one of them actually is radical.

Early in his tenure, Chief Justice Roberts expressed his desire to avoid 5-4 decisions on controversial topics, believing that such contentious rulings by unelected judges on important matters of public policy do not benefit the country. The key to avoiding such 5-4 decisions, according to Roberts, was to decide controversial cases on the narrowest grounds possible. But despite his stated intent to seek “broad agreement,” Roberts has presided over the most conservative Supreme Court in modern history. The Roberts Court has been marked by the very type of contentious hot-button decisions he hoped to avoid, with 5-4 decisions on topics such as abortion and discrimination. Roberts himself authored the 5-4 decision in Parents Involved, a school integration case. Roberts’ opinion is viewed by many as a betrayal of the court’s landmark rulings on civil rights, particularly Brown v. Board of Education.

Until the health care decision is issued, the most controversial decision of the Roberts Court will remain Citizens United, in which the Court struck down elements of the McCain-Feingold campaign finance law. Not only was Citizens United another 5-4 decision on a hot-button issue, the decision was a flagrant violation of the chief justice’s admonition that controversial cases should be decided on the narrowest grounds possible. The most controversial aspect of the decision wasn’t its ruling on the statute, but rather its holding that corporations have free speech rights equivalent to individuals. As eloquently argued by Justice John Paul Stevens in dissent, the majority reached this holding by addressing issues not even briefed by the parties; they “changed the case to give themselves an opportunity to change the law.”

The health care ruling could be another radical decision in which the Roberts Court dramatically departs from precedent, reshaping the law to fit the conservative justices’ ideological preferences. The degree to which striking down Obamacare would depart from the Court’s commerce clause precedent has been recognized by conservative jurists such as Judge Laurence Silberman and Charles Fried, solicitor general under Reagan.

Like Roberts, President Obama entered office promising to seek consensus. Like Roberts, his opponents accuse him of doing the exact opposite. Senate Majority Leader Mitch McConnell has called President Obama “the most divisive [president] I’ve ever served with.” But the force of McConnell’s charge is weakened by his own admission that the top priority of congressional Republicans is to make President Obama a one-term president. President Obama has not united the country because Republicans simply cannot allow him to do so. Whereas Chief Justice Roberts has only once broken from his fellow conservatives on a closely-divided case, President Obama has consistently infuriated his base by implementing or maintaining Republican policies, such as freezing the pay of federal workers and continuing Bush-administration “War on Terror” policies. Yet all of these olive branches have just been greeted with further charges of radicalism.

The health care bill is a prime example. For all the apocalyptic rhetoric used by Obamacare’s opponents, it’s a pretty moderate piece of legislation. As you may have heard, Obamacare was modeled after a health care law championed by a Republican governor in Massachusetts. The most controversial aspect of the bill—the individual mandate—was developed by the conservative Heritage Foundation and once championed by right-wingers like Rick Santorum and Newt Gingrich. As Ezra Klein has pointed out, conservatives’ change of heart on the mandate follows a long-term pattern in America’s health care debate: every time Democrats failed to pass reform, they moved to the Republican position, and the Republicans responded by moving further right.

The process by which President Obama went about passing Obamacare also reflects a sincere commitment to consensus building. Despite entering office with large Democratic majorities in both houses of Congress, the president and Senate Democrats spent months negotiating with Republicans over health care reform until it became clear that Republicans were committed to blocking any health care bill put forward by the president. The public option was removed from the bill in part to win the support of Republican Senator Olympia Snowe, and she likely could have gained greater concessions had she ultimately committed to supporting the bill. The procedural tactics the Democrats employed to pass the bill that Republicans denounce—the use of reconciliation to avoid the filibuster and the deals cut to win the support of individual senators—were necessary only because not a single Senate Republican was willing to negotiate in good faith and the Republicans were themselves using every procedural tool available to block a bill that had the support of the president and a majority of both houses of Congress.

The effect of the Republicans’ reflexive and unrelenting resistance to whatever President Obama proposes—on health care or in other areas—is that Congress, like the Supreme Court, is moving further and further right. Formerly moderate ideas become left wing, conservative ideas become moderate, and the mainstream Republican position on issues like tax rates, Social Security, contraception, and labor unions are what would have been fringe positions not very long ago. President Obama, because he, unlike Chief Justice Roberts, was sincere about wanting to govern by consensus, has been an accomplice—a reluctant accomplice, but an accomplice nonetheless—in this rightward shift.