Today, the Tea Party group Americans for Prosperity — which is chaired by GOP energy billionaire David Koch — joined this effort as well. The Koch group’s first ad attacks the three justices because they joined a 5-2 opinion blocking an unconstitutional ballot initiative seeking to nullify the Affordable Care Act:
Many states, like Ohio, gave their citizens the right to vote against [the Affordable Care Act]. But not Florida. Our own supreme court denied our right to choose for ourselves. Shouldn’t our courts protect our rights to choose?
First of all, the Florida Supreme Court’s decision had nothing whatsoever to do with denying people their “right to choose.” To the contrary, the court removed the unconstitutional ballot initiative after the initiative’s own defenders admitted that the ballot language accompanying this initiative was misleading. So the court’s opinion stood simply for the very banal point that voters should know what they are voting for before they cast a ballot.
More importantly, however, by praising this ballot initiative, the Koch group is also endorsing a misguided constitutional theory known as “nullification.” Because the Constitution provides that duly enacted federal laws “shall be the supreme law of the land,” states simply do not have the authority to block an Act of Congress such as the Affordable Care Act, whether through a ballot initiative or otherwise.
Although nullification was very much in vogue among nineteenth century slaveholders and Civil Rights era segregationists, it has largely been avoided for most of American history because the Constitution speaks so clearly and unambiguously that it is not allowed. Nevertheless, it has experienced a moderate renaissance among Tea Partiers after a right-wing pseudo-historian named Tom Woods published a book defending the idea. Woods also once published an article declaring the Confederacy to be “Christendom’s Last Stand.” In it, he endorsed the view that the Civil War was a battle between “atheists, socialists, communists, red republicans, jacobins on the one side and the friends of order and regulated freedom on the other.” He concludes that “[t]he real watershed from which we can trace many of the destructive trends that continue to ravage our civilization today, was the defeat of the Confederate States of America in 1865.”
So the Koch group’s ad does not simply seek to punish three justices for placing the law before conservative ideology and turn Florida’s highest court over to the mercies of a Tea Party governor, it also endorses one of the most outlandish misreadings of the Constitution ever conceived by states’ rights advocates — many of whom later wielded it to defend the most abhorrent practices in American history. The Koch ad demonstrates that one of the most powerful and well-moneyed interest groups in the Republican coalition embraces the worst kinds of constitutional thinking, and that they are eager to seek revenge against a judge or justice who rejects their twisted view of the Constitution. If the Koch group succeeds in taking out these three justices, if will send a clear message to every elected judge in the country that they follow the Constitution at their own peril.