06:36, December 18 326 0 theguardian.com

2018-12-18 06:36:06
Trump made the conservative dream of remaking the federal judiciary true

The presidency of Donald Trump has had very mixed results for those of his supporters who hoped he would deliver conservative policy priorities. Trump’s scandals and high-octane promotion of white identity politics have sucked up all the available oxygen. The only major legislative achievement Republicans can point to after two years is an unpopular tax reform package.

Meanwhile conservatives have been forced into reality-warping mental gymnastics to reconcile their support for the president with their claim to be standard-bearers of personal morality and law and order. Although a dedicated base still sticks by Trump, the midterms showed that Republicans have paid a price in credibility and electability as a result. Their ability to deliver conservative policies by winning elections has been reduced accordingly.

Yet there is one area in which Trump has made the long-held dreams of his conservative supporters come true: the remaking of the federal judiciary. By making an unusually high number of appointments to federal courts, Trump could profoundly remake large parts of American life even if the Republicans lose every post-Trump presidential election for the next 20 years.

An indication of what is at stake came last Friday, when a federal judge in Texas ruled the Affordable Care Act (also known as Obamacare) unconstitutional. The plaintiffs in the case took issue with the law’s individual mandate, which requires Americans to purchase health insurance, arguing that since Congress removed the penalty for remaining uninsured in 2017 the mandate can no longer be regarded as a constitutional expression of Congress’ power to tax. They further argued that as a result, the entirety of Obamacare was unconstitutional. Judge Reed O’Connor agreed.

Even most conservative legal scholars, including ones who have appeared in court at other times to oppose Obamacare, agree that the case is based on fringe legal ideas and is likely to be thrown out by a higher court. But it is still indicative of a broader attempt to roll back the limits of what conservatives derisively call “the administrative state” and its regulation and welfare policies by judicial rather than electoral means.

Trump’s judicial picks make it more likely that in the future, these cases will go the way of the enemies of federal regulation and welfare. In picking his judicial nominees, Trump has relied on the advice of the Federalist Society, a conservative legal group that aims to place judges who advocate a very strict reading of the constitution on the federal bench. Such judges are apt to overturn laws for which they cannot find an obvious basis in the constitution, a category which they argue includes Roe v Wade and much of the legislation that governs the modern American regulatory and welfare state.

This represents both an opportunity and a challenge for the Republican party and broader conservative movement. It gives them the opportunity to advance their policy priorities – such as restricting abortion or overturning Obamacare – even as they increasingly struggle to win elections. Along with gerrymandering and restrictions on voting rights, judicial dominance could be another way in which the GOP tries to struggle against the winds of change.

On the other hand, Republicans are at risk of overstretch if their transformation of the federal judiciary proceeds too far, as the latest case against Obamacare reveals. Key aspects of the healthcare law remain overwhelmingly popular. Three-quarters of the public, including 58% of Republicans, say it is very important that protection for those with pre-existing medical conditions remain in place. Many Republicans who had opposed this protection felt it necessary to lie about their position in the recent midterms.

Their inability to win electoral mandates to overturn these popular policies explains why the GOP is turning to judicial means to do so instead, but it also raises the question of what would happen the day after they were successful. The spectacular failure of the last Congress to pass a replacement to Obamacare shows that the Republican party is bereft of constructive ideas in this area even as it seeks to tear down the existing policy that provides healthcare to millions through its lawsuit. Even while in government the party was stuck in an oppositional mode and unable to offer a vision of its own.

It is possible to envisage a nightmarish future in which a deeply conservative judiciary rolls back the “administrative state” on the basis of fringe legal ideas, and Democrats are unable to have laws protecting the basic interests of hundreds of millions of Americans upheld in court despite overwhelming popular support. Even as Republicans suffered at the ballot box as a result, welfare, healthcare, abortion rights and environmental protections might all be rolled back without a democratic mandate. Such a stark shift in the philosophy of the judiciary would do severe damage to American democracy, and sever the Republican party from any claim to uphold the popular interest, with severe electoral consequences sure to follow.

Two years of Trump’s judicial nominees have not yet been enough to bring about such a dramatic change. But eight years might. All Americans, including Republicans, ought to ask themselves if such a scenario is really in their long-term interests.


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