Over the past two days, the U.S. Supreme Court issued two landmark rulings on Obamacare and same sex marriage. Each case was profound for different reasons. In King v. Burwell the Court further stabilized and legitimized the Affordable Care Act—essentially enacting change by maintaining the status quo. In Obergefell v. Hodges, the Court declared same sex marriage to be a right guaranteed under the U.S. Constitution—enacting change by expanding the penumbra of a constitutional right to gay couples. Liberals across the nation have spent two days cheering Supreme Court rulings. But in addition to liberals, Democrats, gay couples, and those seeking affordable health care coming out as winners, the Republican Party should chalk up a big win, too.
Yes, many Republican elected officials lamented the Court’s rulings—preferring ACA subsidies to be removed ensuring the law collapse like a house of cards and for same sex marriage to be deemed a state’s prerogative. Yet, in an odd twist, Republicans may well benefit from the rulings more than anyone else.
If the Court issued decisions in King and Obergefell in the opposite directions, Republicans would be on the defensive. People would be losing health care; the gay rights and equality-oriented communities would feel further disenfranchised. The left would be irate and mobilized to help get Democrats elected and fight for the issues they believe are fundamental. The opposite would happen on the political right. Obamacare would collapse and would no longer be topic to unify Republican politics—nor would it be an effective topic for fundraising.
In a similar twist, a conservative victory on same sex marriage would have quelled Republicans’ political strategy centered on culture wars—big business in politics for both parties and a very effective venue from which to fundraise. In fact, Supreme Court Justice Ruth Bader Ginsburg noted something similar at a University of Chicago Law School event on Roe v. Wade. She argued that although the ruling provided women reproductive rights, it empowered opponents. She explained, “The court had given the opponents a target to aim at relentlessly.” The same can be true for same sex marriage. The ruling in Obergefell gives opponents of same sex marriage a feeling of betrayal from the Supreme Court and a threat from a rapidly changing society. Obergefell, like Roe, may be the new “target to aim at relentlessly”—and GOP strategists know it!
King and Obergefell will help Republican candidates—running for any office from President to dogcatcher—raise tremendous sums of money and have a reliable, unifying issue when speaking to conservative audiences. Republicans still have Obamacare to use as the premiere punching bag of presidential policy. Republicans still have same sex marriage to worry older, conservative, and traditional voters that they are losing hold on the America they know and love. Stump speeches will focus on family values, the decay of society, death panels, bloated government—AND a wily group of nine unelected judges forever steering America in a scary, uncomfortable, and unconstitutional direction.
Republicans’ legal interests did not win at the Supreme Court this week, but their political interests received a huge boost.
Along with the political benefits of King and Obergefell come a few ironies—both involving the Chief Justice of the United States John Roberts. First, in King, Chief Justice Roberts penned a powerful opinion upholding health care subsidies for Americans purchasing insurance on a federal exchange. (See some excellent reflection on this case in FixGov pieces from Philip Wallach and Richard Lempert.)
Roberts’ opinion ensured two things. First, Obamacare is here to stay. Second, because Obamacare is here to stay, Republicans can continue to capitalize on it through opposition. In his dissent, Justice Scalia bemoaned the ruling. Many conservatives viewed the Scalia dissent as the articulation of conservative and Republican interests in the case and on this issue. That praise of Justice Scalia is misplaced. In reality, it is Chief Justice Roberts’ opinion that will do more both to line Republican campaign coffers and provide copy for Republican campaign advertising. In upholding Obamacare subsidies, John Roberts may well have a more outsized role in the 2016 presidential election than any billionaire SuperPAC donor, high-paid campaign strategist, innovative advertising executive or suave candidate. The majority ruling in King offers the GOP a goldmine of opportunity and it is Roberts’ opinion—not Scalia’s—that should have Republicans cheering.
The second irony involves charges of judicial activism. In response to the King case Republicans angrily spoke of the Chief Justice’s activism. Senator Ted Cruz (R-TX) angrily stated, “Today’s decision in King v. Burwell is judicial activism, plain and simple. For the second time in just a few years, a handful of unelected judges has rewritten the text of Obamacare in order to impose this failed law on millions of Americans.” Even Justice Scalia argued in his dissent, “And the cases (Sebelius and King) will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.” However, the following day, in Obergefell, it was the Chief Justice (Thursday’s most hated judicial activist) who decried judicial activism in a dissent. He writes, “The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial ‘caution’ and omits even a pretense of humility, openly relying on its desire to remake society according to its own ‘new insight’ into the ‘nature of injustice.’” As an avid opponent of judicial activism, Chief Justice Roberts’ dissent in Obergefell tells us he would really dislike the judge who wrote the majority opinion in King. Of course, one judge’s judicial activism is another judge’s foundational constitutional jurisprudence.
However, regardless of your view on the theatrics, the irony, the sharp-tongued dissents, and the public hyperbole that emerged from the two major Supreme Court rulings this week, one reality is quite clear. Republicans’ rage about King and Obergefell masks the political glee they must be internalizing because thanks to a few dozen pages of “judicial activism,” campaign fundraising and speechwriting just got a whole lot easier.