Nearly a week after the Supreme Court’s landmark decisions in King v. Burwell and Obergefell v. Hodges, it’s a good time to take stock of the Republican party’s reactions to what was by most accounts a one-two punch to its values and interests, all the more powerful because it came from an ostensibly conservative Roberts Court.
Before I begin, an important qualifier: The reactions I will discuss are the public, attributable reactions of GOP leaders. It’s a virtual article of faith in the mainstream media that privately, Republican pols and other elites are delighted with the decisions, because one of them took a divisive issue off the table on which most Republicans were on the losing side of rapidly changing public opinion, while the other avoided a collision between conservative rhetoric and reality on health care.
That may be true. But if such private opinions have no discernable impact on public positions or even on party strategy and tactics—i.e., if Republican leaders have to act as though they are deeply upset by the decisions—then who cares what they think when they are not in earshot of actual Republican voters?
So: Officially the GOP is in deep mourning over last week’s decisions, and to varying degrees furious at Anthony Kennedy (the double apostate) and John Roberts (the double savior of Obamacare) for treason to The Cause.
With respect to King v. Burwell, Republicans have been returned to the situation they faced before this case threw them a curveball. The key questions are how quickly and under what conditions they pursue Obamacare’s elimination, and then which basic post-Obamacare scenario they embrace.
On the first question, the supposed readiness of Republicans for a plaintiff’s victory in King—completely fictional, as best as I can tell, but not a myth they can publicly bust—should sweep away any reluctance to insist on a “first day” effort to repeal the law if Republicans win the White House and hold onto Congress next year. It will also strengthen the hands of those conservatives, notably Ted Cruz, who want a kamikaze “repeal” drive even before then.
On the second question, removing the complication of a post-King transition plan should make it easier for Republicans to fall into one of the three anti-Obamacare categories aptly described by Phillip Klein: “reformers” who want to use the structure of Obamacare to reshape Medicare and Medicaid into “premium support” programs for private insurance (e.g., Avik Roy, now an advisor to Rick Perry); “replacers” who embrace Obamacare’s basic goals but want to use “market mechanisms,” tax credits and high-risk insurance pools—and maybe block grants—to achieve them (Marco Rubio, along with most congressional Republicans); and “restarters” who think the whole idea of moving towards universal health care is misguided and propose to focus strictly on costs (Bobby Jindal and Ted Cruz) or “cures” (Huckabee).
One wrinkle in King is especially important: the majority opinion’s refusal to base its decision on the so-called Chevron rationale of deferring to federal agency interpretations of ambiguous statutes. Otherwise, in theory at least, a new Republican president could kill the Obamacare subsidies at issue in King via a reversal of that interpretation. Now it will require full legislative action, and presidential candidates will not find themselves in a rush to promise a regulatory assault on Obamacare. They will, however, have to double down in their eagerness to use whatever tools come to hand—especially the filibuster-proof reconciliation process and hostage-taking threats—to kill and replace the law as quickly as possible.
The Court’s decision in Obergefell is another matter; it leaves no obvious route for conservative relief other than the improbable path of a constitutional amendment. The willingness to support one will nevertheless be the minimum price demanded by Christian Right groups for candidates in the GOP nominating process. Because it gave him an opportunity to reverse his prior position and embrace a constitutional amendment, Obergefell was a godsend to Scott Walker, who is now being embraced by social conservative groups who recently disparaged his dodginess on same-sex marriage. Jeb Bush and Marco Rubio have not yet gone there.
Meanwhile, Bobby Jindal and Mike Huckabee have competed in courting actual defiance of the new law of the land, which they argue vindicates their increasingly wild rhetoric about an impending war on Christianity. Rand Paul has taken the interesting approach of trotting out the very old libertarian idea of “privatizing” marriage so as to eliminate any government sanction or subsidy (an idea tainted by unsavory associations with efforts to avoid desegregation of schools and even primary elections by making them ostensibly private).
Ted Cruz’s reaction to Obergefell is by far the most audacious. And yet it has the exceptional advantage of representing an omnibus reaction not only to both of last week’s unhappy decisions, but to, as he puts it, “a long line of judicial assaults on our Constitution and the common-sense values that have made America great”: a constitutional amendment that would expose Supreme Court Justices to periodic “retention elections” like judges in many states. (It’s no accident, I am sure, that one of them is Iowa, where conservatives have recently been heavily focused on ejecting judges who delivered that state’s early judgment legalizing same-sex marriage.)
I don’t expect too many candidates to go as far as Cruz and embrace a radical approach identified in the past with populists from both sides frustrated by judicial opposition. Still, they will all inevitably have to compete to convince conservative voters that their own Supreme Court nominees will never even consider making a decision liberals might cheer. This is a very old conservative grievance with Republican politicians that last week’s events will enormously aggravate. It’s made more intense by the likelihood that the Court will soon be in a position to modify or overturn the great-granddaddy of “liberal activist” decisions, Roe v. Wade, which as Ted Cruz describes it, “condemned millions of innocent unborn children to death.”
The last time the Supreme Court had an opportunity to reverse Roe, in 1992, all five Justices who voted to uphold it were appointees of Republican presidents—including last week’s leading conservative traitor, Anthony Kennedy. Indeed, in the judicial context “conservative” is actually the wrong term for the kind of judges the Right is now demanding, since it implies deference to yesterday’s godless decisions. Sure, votes to overturn Roe and Obergefell (presumably King would soon be moot with a Republican president and Congress) will be what activists are demanding. And each time a candidate signs an implicit pledge to do just that, the stakes of the 2016 elections will go up for Republicans—and for Democrats.
Ed Kilgore is the principal blogger for Washington Monthly’s Political Animal blog, Managing Editor of The Democratic Strategist, and a Senior Fellow at the Progressive Policy Institute. Earlier he worked for three governors and a U.S. Senator. He can be followed on Twitter at @ed_kilgore.