Republicans like to talk about impeaching President Obama, but there is a far more deserving candidate for impeachment—Chief Justice John Roberts of the Supreme Court. While the Republicans in Congress have blocked Democrats from enacting much of substance, the GOP majority in control of the Court has been effectively legislating on its own, following an agenda neatly aligned with their conservative party. Step by step, the five right-wing justices are transforming the terms of the American political system—including the Constitution.
They empowered “dark money” in politics and produced the $4 billion by-election of 2014. They assigned spiritual values to soulless corporations who thus gained First Amendment protection of free speech and religion. The justices effectively gutted the Voting Rights Act of 1965, even as they allowed state governments to create new obstacles for minority voting. The High Court made it okay to take guns to church and more difficult to keep guns from dangerous people. It rendered a series of decisions that collectively shifted political power from the many to the few.
This power grab by the unelected—and supposedly non-partisan—justices has already produced a historic rewrite of America democracy. But it was done by blatantly usurping the decision-making authority that belongs to the elected government in Congress and the executive branch. The Republican justices are not finished with their undeclared revolution. They will continue unless and until people rise up and stop them.
The Roberts Court’s latest target is once again President Obama’s singular achievement, the Affordable Care Act. Under peculiar circumstances just three days after the midterm elections, the Court announced it will hear another legal challenge that threatens to disable and perhaps destroy the new healthcare system.
The timing of this new intervention has a distinct odor of political collusion. The Republican takeover of the Senate is already invoked by Court allies to suggest the justices are merely responding to the will of the people. Some conservative Court watchers tout the new case as a chance for the chief justice to make amends and get with the program. The latest challenge was fashioned in Washington by the same club of right-wing legal foundations and pricey corporate lawyers who have been attacking affirmative action and other liberal reforms since the Reagan administration.
Michael Carvin of the Jones Day law firm is a cocky veteran of the right’s long crusade and the lead lawyer for the new case. He is already boasting of the outcome, even though the intermediate DC Circuit Court of Appeals has not yet ruled up or down as would normally occur before the Supreme Court agreed to consider it. Carvin dismissed the DC Circuit Court, now dominated by Democratic appointees, as a meaningless anomaly. He told a Talking Points Memo reporter he doubts that Supreme Court conservatives “are going to give much of a damn about what a bunch of Obama appointees on the DC Circuit think.” Goodbye to deference and regular order.
But might Carvin’s case still lose at the Supreme Court? “Oh, I don’t think so,” he said. That was his cute way of saying this time Chief Justice Roberts will be on board with the other four conservative justices. Carvin didn’t say why he is so confident, but he and Roberts seem to be old chums. At a Federalist Society event last year, Michael Carvin indulged in a bit of classy namedropping. The admiring conservative society reported that Carvin “told an anecdote in which Chief Justice Roberts approached him and jokingly chided him for having favored appointing Samuel Alito before Roberts.” What does this say about their relationship? Maybe nothing, but one would like to ask a few follow-up questions.
Roberts himself takes offense at accusations that the Roberts Court renders politicized decisions. He has frequently denied the charge. “We’re not Republicans or Democrats,” Roberts told students at the University of Nebraska law school. Unlike some of his right-wing colleagues, Roberts wants to have it both ways. He’s not an ideologue, just an earnest umpire calling balls and strikes.
Baloney. If Carvin and other conservative legal eagles are correct that this time the Chief Justice will rule against the healthcare law, that should give people a prima facie case for considering impeachment. At a minimum, people should demand a thorough public investigation into whether surreptitious political interference occurred (who said what to whom offstage?). If politicians are reluctant to go down that road, people can start their own inquiries. The chief justice should be forewarned what will likely happen if he does scuttle the ACA. I expect “Impeach John Roberts” signs and billboards to start popping up all over America as people finally figure out who did this to them. Hint: it was not Barack Obama.
A prime witness should be Linda Greenhouse, who for decades was the influential New York Times correspondent covering the Supreme Court (now at Yale law school). Greenhouse was admired for her fair-minded analysis and great clarity in explaining esoteric legal arguments, She finds the current state of affairs “profoundly depressing.”
Greenhouse explained in her blog posted at NYTimes.com: “In decades of court-watching, I have struggled—sometimes it seems against all odds—to maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes. This past week I found myself struggling against the impulse to say two words: I surrender.” (Linda Greenhouse has not herself called for impeachment.)
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The new case against Obamacare reads like “a politically manufactured argument,” Greenhouse wrote. She called the maneuvering “a naked power grab by conservative justices who two years ago just missed killing the ACA in its cradle.” As evidence, she cited the unusual twists in Supreme Court behavior. Normally it waits to see if there are conflicting views among circuit courts of appeal before taking a case for consideration. This time, the Fourth Circuit based in Richmond, Virginia, upheld the law. The DC Circuit in Washington has all twelve judges reviewing and seems very likely to uphold the law, since that court is now top-heavy with Democratic appointees. The Supremes went ahead regardless.
Greenhouse cited Michael Carvin’s confident boasting as suggesting the political flavor. She also invoked remarks by Professor John Yoo of UC Berkeley—famous in Bush years as the “torture lawyer” who defended brutal interrogations and a former clerk for Justice Clarence Thomas. On National Review Online, Yoo felt sure Roberts will now support the ACA challenge because the case “gives him the chance to atone for his error upholding Obamacare.” Yoo wrote: “What judge can resist the chance to reach the right legal result, fix mistakes from the past and act with popular support? It’s a Supreme Court trifecta.”
Over-confident Republicans naturally assume the public will be grateful if the Supreme Court rescues them from Obama’s healthcare system. But the first result is bound to be utter chaos and confusion and millions of people—mostly in red states—who discover they are the losers. If the GOP legal challenge succeeds, the High Court will rule that the federal exchanges—created for states that declined to create their own state exchanges—operate illegally because the ACA does not give them explicit authority to dispense the tax credits that subsidize health insurance.
A blizzard of low- and moderate-income buyers of insurance would be suddenly stripped of government assistance—around 5.2 million of them. But there is a cruel twist Republican leaders fail to acknowledge: their own red-state constituents will be the most victimized. Leading right-wing politicians have endorsed the very lawsuit that will punish the Southern and Western states if it prevails, while blue states and northern cities that are operating their own state exchanges may not suffer at all.
The lawsuit now before the Supreme Court, for example, has been formally joined by Senators Cornyn and Cruz of Texas, Hatch and Lee of Utah, Portman of Ohio, Rubio of Florida, Representative Darrell Issa of California and the state governments of Oklahoma, Alabama, Georgia, West Virginia, Nebraska, South Carolina and Kansas. If these politicians win, their states are the big losers.
But of course the citizens who will be screwed in the red states are mostly working poor or moderate-income families. Republicans are okay with that. They ostensibly believe that belt-tightening helps build character. The GOP may have a time with blowback from the insurance industry and other providers in the healthcare system. While it’s not widely understood, many billions in federal subsidies help people of limited means buy health insurance but they never actually see the dollars themselves. The money flows directly from the Treasury to the private enterprises. Insurance lobbyists are already on the case, explaining real life to clueless conservatives.
Up to this point, I have barely mentioned the logic of the conservative assault on Affordable Care. Because there isn’t much logic to it. It depends entirely on a narrow-minded reading of the original legislation—so ridiculously literal that only gnomes in a medieval castle could take it seriously. In a nutshell, the right-wing lawyers claim that the law describes how state-run exchanges will be able to dispense federal subsidies to people in need, but the law fails to say explicitly that federal exchanges have the same powers.
Okay, the drafters could have repeated the requisite language to reassure fly-specking lawyers, but really there was never any doubt about the congressional intent. As the US Court of Appeals for the Fourth Circuit has ruled, the logic of the entire system over-rules any blurred language. The law says explicitly that the secretary of Health and Human Services has the authority to create federal exchanges when and where states don’t want to do it. In other times, any such ambiguity would have been quickly eliminated with a technical fix, routinely adopted by mutual consent.
But the new Republican Party refuses to go along with anything that resembles cooperation and might shine a good light on Democrats. What the right-wingers really hope to achieve is a total breakdown of the ACA’s complex architecture. Throw sticks in the spokes. Force the Obama administration to open the legislation for Republican tinkering. The Supreme Court appears to be pursuing a similar strategy In other words, right-wing senators want Supreme Court right-wingers to accomplish by edict what GOP legislators could not accomplish for themselves.
Barack Obama can win this fight by not giving in to the Supreme Court, even if he temporarily loses there. The president has to call out his opponents and tell the hard truth about their illegitimate abuse of power. People may listen if he genuinely fights for them.
People may recall the last time Americans wanted to impeach a Chief Justice was in the 1950s, when Earl Warren—a liberal Republican from California—championed Brown v. Board of Education in the long legal battle to defeat Jim Crow segregation. Chief Justice Roberts has been leading in the Court in the opposite direction. Instead of comforting the afflicted, he is comforting the comfortable.