On healthcare, the right embraces activist judges

The GOP's base wants the courts to strike down healthcare reform. The party's establishment might not agree

Published March 23, 2010 1:24PM (EDT)

As the American center-left staged its long retreat -- from, say, 1966 to 2006 -- one of the charges liberals often faced was that they were always trying to subvert the popular will off-stage, in the court system. The gist of this was that the conservative backlash on social issues had driven liberals into a defensive crouch, and they didn't dare stand up in public for the ideas they cared about. So instead they lawyered up. If Democrats couldn't convince Joe and Jane Sixpack, at least they had a shot with Anthony Kennedy and Sandra Day O'Connor.

The classic version of this argument, of course, was around abortion and privacy law. But it showed up everywhere: detention, torture and surveillance cases, affirmative action, crime, punishment and the death penalty -- you name it. This criticism was always meant to target the liberal elite, for its disconnection from everyday folks. A clique of chardonnay-swilling Manhattanites called up their activist judge friends, and together they started picking away at the edifice of American justice and morality.

Well, now the shoe is on the other foot. The GOP has just lost an epic confrontation on the signal issue of the moment, and it happened after a decisive election, long public discussion, and finally, a vote on the floor of Congress. So what’s the conservative plan? Take it to the courts, of course.

The Atlantic’s Marc Ambinder reports that at least 12 state attorneys general are filing suit to keep healthcare reform from being implemented in their states. Ambinder’s whole post is worth a read for his explanation of just why this is probably a doomed effort. "It is true that no court has ruled on the specific question, but there is plenty of reason and case law to believe that courts will be initially skeptical of the challenge. Congress's latitude here is wide."

But, as he points out, the lawsuits aren’t really about overturning healthcare. If you’re a red-state attorney general, you have your eye on the governorship or the U.S. Senate. These lawsuits are a strategy to endear guys like Virginia Attorney General Ken Cuccinelli, or Florida’s Bill McCollum, to their party bases. Writes Ambinder, "It advances the politics of conservative jurisprudence, and the political ambitions of conservatives, and it keeps the legislation itself in a state of suspended political animation."

The officials filing suit get to make themselves the center of the fight for conservatives. So what if they’re asking activist judges to strike down the will of the elected branch? By moving the location of the healthcare battle away from the zone subject to public contest, and into the judiciary, they’re also moving attention onto themselves.

After all, what the criticism of liberal judicial elitism always missed was that taking an issue to the courthouse is actually a weapon of the grassroots. Pragmatic party leaders are rarely thrilled about having to defend unpopular court decisions. How do you think, say, Rahm Emanuel feels about the ACLU?

By the same token, it would probably be a fiasco for the GOP if the lawsuit actually went anywhere, which it almost certainly won’t. Institutional pillars of the conservative establishment like the Chamber of Commerce are already distancing themselves from the repeal effort. (Why repeal, when you can just quietly gnaw away at the spirit of the reform at the regulatory level?) They'd probably go running the opposite direction if say, Justice Antonin Scalia voided a year’s worth of legislative heavy lifting. Republican presidential candidates would be forced to try to get to each other’s right by denouncing the constitutionality of the reform, hurting themselves in a general election. You can bet Mitt Romney is hoping this lawsuit dies quietly.

And while President Obama is surely not hoping for the judiciary to strike down his major accomplishment, he probably wouldn’t mind seeing some Republican lawyers standing on marble court stairs, holding forth on the unconstitutionality of universal healthcare.

By Gabriel Winant

Gabriel Winant is a graduate student in American history at Yale.

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