by Neil H. Buchanan
The news from the Supreme Court late last week was truly historic. The Affordable Care Act was saved from a silly lawsuit, and Justice Kennedy penned a genuinely moving affirmation of marriage equality. Anyone who missed Professor Dorf's posts over the last few days is hereby instructed to go back and read all of them -- as well as Professor Segall's post on Friday. I can add little to their legal analysis, and I am not inclined to try. Before I get to the main point of today's post, however, I will offer a personal reaction.
Long-time readers of Dorf on Law know that I have a deep personal connection to the issue of gay marriage, which I wrote about here in 2011 (after New York State's legislature approved its marriage equality law) and in 2012 (after President Obama announced his support of gay marriage). It brings me to tears when I think about what last week's ruling would have meant to my brother and the man who was the love of his life. Chief Justice Roberts tried to soften his hardhearted and legally specious dissent by inviting people who favor marriage equality to celebrate, and I'm happy to oblige. This is bittersweet, but it is moving beyond words.
With that said, I will devote the remainder of today's post to discussing a rather puzzling political discussion that immediately emerged after last week's two big Supreme Court cases were announced. (The side discussion about Justice Scalia's continuing efforts to destroy what remains of his reputation is interesting, too, but beside the point here. Fortunately, Professor Segall will take up that issue in a post later today.) Specifically, the discussion centered on whether the two cases have made life easier for the Republican Party going forward, and if so, how.
Certainly, I was among the people who viewed the outcome of the ACA case (King v. Burwell) as a gift to the Republicans. My thought was that the Republican leadership foresaw what a disaster it would have been to enter an election season having championed a nakedly political lawsuit that had created havoc in the health care system. And because the Republicans had not been able to come up with serious alternatives to the ACA, short-term or long-term, the party would be better off losing the case.
Even if the five conservatives on the Court do not receive marching orders from their friends in the party, they could certainly figure out what would be good for the conservative movement. In fact, the stakes for the Republicans were so obvious that I
imagined in advance that the case might have been decided by an 8-1
vote, with even Scalia and Alito seeing the case as a free vote and taking the opportunity to try to say,
"See? We're not as politically hackish as we seem."
Because of those considerations, I could not imagine King going the wrong way. The surprise, then, was that only Kennedy and Roberts voted to uphold the subsidies. (Roberts was, of course, immediately praised by those who somehow think it important to describe easy and obvious votes as evidence of moderation and reasonableness.) It was equally obvious, for reasons both political and practical, that Obergefell v. Hodges was going to come out the right way. The 5-4 split there was predictable, with only the manifest weakness of the various dissents being the surprise. (Again, once the outcome was known inside the court, one could have imagined the Chief trying to win additional plaudits by switching sides, but apparently he could not bring himself to do so.)
It seems clearly correct, therefore, to say that the outcomes of the two cases could be viewed as both foregone conclusions and a matter of saving the Republicans from themselves, because it will allow them finally to put the pointless bashing of the
ACA behind them, and to stop turning off younger voters with their
anti-gay policies and rhetoric. Even though the Republican presidential candidates have thus far managed to respond to Obergefell
in a way that probably makes matters worse, it is at least possible
that the party could benefit by slowly allowing all of that to fall by the
The question is, however, what comes next. One argument went so far as to say that the post-King-post-Obergefell political environment will actually be friendly to Republicans. An article in The New York Times on Saturday quoted conservative apostate David Frum: "Every once in a while, we bring down the curtain on the politics of a
prior era. The stage is now
cleared for the next generation of issues. And Republicans can say,
‘Whether you’re gay, black or a recent migrant to our country, we are
going to welcome you as a fully cherished member of our coalition.’ ”
As I once noted on this blog, Frum was effectively drummed out of the conservative movement a few years ago, because he complained that the Republicans have become the handmaidens of Fox News. Despite his current lack of standing among conservatives, however, his point was that one can be a good conservative without being a gay-baiting, racist, immigrant-bashing neanderthal. I am not actually sure that he is right about that, but he seems to believe it to be true, and he seems to believe it in good faith.
The initial problem with that formulation of the newly promising path forward for Republicans, however, is that the two big cases last week at the Supreme Court had nothing to do with race (in any obvious way) or immigration. It is true that the recent horrific murders by a white supremacist in Charleston have led to what appears to be progress, with large numbers of Republicans finally distancing themselves from the most racist elements of their political base. That will help them, if it lasts, but it will not change any of the other obvious ways in which the party has become the last refuge of angry old white men.
Certainly, nothing that we have seen recently would give us any reason to think that the Republicans (most definitely including their presidential candidates) will change their views on immigration. If anything, the culture war dead-enders might intensify their litmus tests on immigration questions.
Beyond that, what might we say about the issues that still make conservatives like Frum conservative? On economic policy, the party is absolutely on the wrong side of the inequality debate, both as a political issue and as an economic policy matter. National trends regarding minimum wages have become a tidal wave in liberals' favor, and there is now a great deal of room within mainstream political discussions to advance progressive tax proposals. Republicans will surely continue to cry "class warfare," but that is by this point pretty old and weak.
Similarly, Republicans' efforts to try to advance anti-Social Security rhetoric, in an attempt to appeal to younger voters, have been singularly ineffective. Beyond the silly stuff, like Jeb Bush's confused suggestion to increase the retirement age, the entire party's obsession with viewing all government programs as undeserved handouts continually fails to hoodwink its intended audience.
The evidence suggests that a domestic policy platform that amounts to putting lipstick on regressive, trickle-down tax and spending policies, combined with efforts to undermine the middle class's safety nets and to gut environmental and other regulations, is simply not a promising electoral strategy. It is very popular with the Chamber of Commerce crowd, and with the Rand Paul mini-slice of the electorate, but it turns off the people who determine the outcomes of national elections.
I am not saying this because I find the policies objectionable on substantive grounds, although I do. It is possible to see when bad policies are politically successful. I am keenly aware that, for example, Ronald Reagan had the ability to persuade people to support bad policies, even though I was utterly unable to see the supposed Reagan charm that worked so well on others. Heck, I can even see why a Times article today said that New Jersey Governor Chris Christie "must build a [presidential] campaign around his most raw and prodigious asset: his personality." Although I personally cannot fathom why his personality is not an enormous liability in everyone's eyes, there is no denying that many people have found him compelling. He is a terrible candidate in a lot of ways, but anyone can see that some of what he does connects with a surprisingly sizable number of voters. (Or at least, it used to.)
The point, then, is that describing the Republicans' economic policy positions as losers is, in this context, not exclusively an assessment of how the policies would work if enacted. As a matter of pure political strategy -- "What are you gonna run on now?" -- economic policy is a liability for Republicans, a liability that can be turned into an asset only to the extent that the Republicans can dress it up as something else. See, for example, their efforts to recycle dependency theory to justify the harshness of their budget cuts, supposedly to help the idle poor feel more inclined to get off the dole. That is bogus, and it really does not sell beyond the party's base, but it is the only arrow left in the Republicans' quiver.
And Republicans can continue to try to run against the weak "Obama economy." That might have some traction, because the incumbent party always carries the baggage of a relatively weak economy. But Obama is not running in 2016, and the Democratic nominee will at least be on solid ground in describing why this is a "McConnell/Boehner economy" as much as anything else. The best attacks on Obama's economic record would be based on his having been too much of a believer in center-right policies, but no Republican will take that line of attack.
If the domestic side of the political debate is stacked against Republicans, what about foreign affairs? Again, the Republicans can simply blame every bad thing that has happened in the world on Obama. That always works, up to a point, in foreign affairs as much as in domestic affairs. But what will Republicans actually propose? Invading Iran? Another surge in Iraq? Selling arms to Assad in Syria? Trying to close the mine shaft gap and threatening Premier Kissoff in Russia? (Sorry, I just watched "Dr. Strangelove" again last night.)
It is worth remembering that the culture war issues that the Republicans are now supposed to be relieved to abandon were themselves viewed as lifelines to a party that had no other way to connect with voters. Now-Senator Al Franken's devastatingly accurate description of the 2004 Bush reelection campaign as having been based on "fear, smears, and queers" should remind us that an incumbent Republican president barely won reelection during wartime, and he did so only by deploying culture war strategies to draw voters to the polls in swing states like Ohio, where Republicans had put an anti-gay marriage initiative on the ballot, to draw more conservative voters to the polls.
This is not to say that the economic and foreign policy issues described here are not less bad for Republicans than continuing to focus on gay marriage and health care would be. In that sense, again, it surely is correct to say that the party was given a reprieve by the Court last week. The idea that they can now go back to their strengths, however, is fatuous. Culture war issues were their strength, and their more traditional economic and foreign policy views were dragging the party down. If anything, moreover, the party has moved further away from the mainstream on those issues during the Obama years.
Does that mean that the Republicans are going to be crushed at the polls in 2016 and thereafter? Maybe, but I am not predicting as much. There might still be ways, in a highly degraded political environment driven by huge pools of dark money, to overcome these policy weaknesses and sell enough people on the idea that the party deserves another chance in the White House. But the idea cannot possibly be: "Oh boy, now we get to go back to what works!" It has to be: "We had a good run with the wedge issues, but that's over. Now we need to figure out how to sell our same-old-same-old, and that stuff was never very popular in the first place."