At least two major political events happened last week which are likely to resonate long after Donald Trump leaves office. The first was the collapse, just a little more than two months into the Trump administration, of the White House-supported health care bill.
Given seven years to prepare for this moment — Republicans campaigned on repealing and replacing Obamacare since the moment it was signed — Trump, Speaker Paul Ryan (R-WI) and their allies couldn’t even come up with a viable bill they could bring to the floor for a House vote.
As Republican dreams of injecting more social Darwinism into the American health care system were dashed by legislative incompetence, a very different spectacle played out in the Senate Judiciary Committee. There, Supreme Court nominee Neil Gorsuch was well-spoken, poised, and knowledgeable — if also more than a little smug at times.
The contrast could not have been more stark. As Ryan struggled to rally votes behind a bill that would strip away 24 million people’s health insurance, Gorsuch deftly defended his originalist approach to the Constitution. As the Freedom Caucus plotted against their own party’s top legislative priority, Gorsuch told artful falsehoods about why one of his decisions hobbling a law protecting disabled children was unanimously overturned by the Supreme Court.
The dichotomy between Gorsuch, the smooth operator, and Ryan, the once-celebrated leader now revealed as in way over his head, is a microcosm of Republican politics in Washington. The four (or, if Gorsuch is confirmed, five) Republican justices who sit on the Supreme Court are some of the most capable lawyers who’ve ever sat on that body — intelligent, knowledgeable, and highly skilled in the craftsmanship that allows a judge to mold the law to fit their worldview.
While congressional Republicans were busy shutting down the government and drafting fantasy health care proposals they aren’t even willing to vote on now that they control Congress and the White House, Republicans on the Supreme Court gutted much of the nation’s voting rights regime. They eviscerated campaign finance restrictions. They carved up protections for workers. And they permitted religious conservatives to limit the rights of their employees.
To date, the single most significant blow to the Affordable Care Act was inflicted by the Supreme Court, with its decision effectively making the law’s Medicaid expansion optional for state governments. (Although, in fairness, two Democratic justices joined that decision, in what may or may not have been a strategic vote to help save the law as a whole.)
“Sometimes you’re playing Fantasy Football and sometimes you’re in the real game,” Rep. Joe Barton (R-TX) offered as an explanation of how his party could vote over and over again to repeal Obamacare, then trip over themselves once they had a Republican president who could actually sign the bill into law. Yet, while elected Republicans have spent the last several years pretending to be in the NFL, it’s Republicans on the Court who have scored touchdown after touchdown.
And there appears to be a reason for this dichotomy. Legislating requires politicians to seek public support, build coalitions, and otherwise engage with democracy; judges can simply hand down orders from up on high.
As it turns out, Ryan and Trump’s Republican Party is far better at the later than it is at the former.
The incompetent Paul Ryan
Since the premise of this essay is that Republican jurists are skilled operators while their counterparts in Congress are incompetents, I should take a moment to explain what I mean by “incompetent.”
The American Health Care Act, the bill Republicans pulled from the House floor last week, would strip 24 million people of health coverage by 2026. By any morally acceptable measure, that’s an incompetently drafted bill. A lawmaker’s job is to serve the people, not to strip away benefits the people may need to survive.
I use the word “incompetent” in this essay, however, to refer less to incompetent policymaking than to an inability to transform a desired policy into law. Paul Ryan and Donald Trump proved incompetent because they set out to create a more laissez faire health regime, then were unable to deliver.
Ryan and Trump’s incompetence runs so deep that they don’t appear to understand how lawmaking actually works.
Similarly, Chief Justice John Roberts appears to have wanted to dismantle much of America’s civil rights laws since he was a young Justice Department attorney. Unlike Ryan and Trump though, he’s made major strides towards his goal — neutralizing much of the Voting Rights Act, among other things. He hasn’t been on the winning side of every civil rights case to reach the Court since he joined it, but Roberts has proved quite deft in bending the arc of history away from racial justice.
Meanwhile, Ryan and Trump’s incompetence runs so deep that they don’t appear to understand how lawmaking actually works.
When President Obama and his allies in Congress set out to write the Affordable Care Act, “they spent 13 months getting the bill from an initial concept to final passage, and pressed on during many points when everybody was predicting doom,” the Washington Examiner’s insightful conservative health analyst Philip Klein writes in his post-mortem of the Republican health bill. Democrats “had public hearings, multiple drafts of different bills, they kept negotiating, even worked into Christmas.”
Perhaps most significantly, Democrats cared enough about solving the problems the Affordable Care Act was intended to fix that they were willing to pay a price for it. “They didn’t back down in the face of angry town halls and after losing their filibuster-proof majority,” Klein writes. “And many members cast votes that they knew risked their political careers.”
Compare that to the slipshod process embraced by Trump and Ryan.
House Republicans slapped together a bill in a few weeks (months if we’re being generous) behind closed doors with barely any debate. They moved the bill through committees at blazing speed, conducted closed-door negotiations that resulted in relatively minor tweaks to the bill, and within 17 days, Trump decided that he’d had enough, and was ready to walk away if members didn’t accept the bill as is.
One consequence of this rush to draft and pass a bill is that pretty much every powerful interest group with a stake in the health care system lined up against Trump and Ryan’s bill.
Obama and his allies spent so long working on their bill in part because they recognized the key role groups like the American Medical Association played in spiking previous efforts to reform the health care system. Their slow, deliberative process eventually brought the AMA on board, along with other key allies like the American Hospital Association.
Trumpcare, by contrast, was opposed by the hospitals, the doctors, and the AARP. The nation’s top industry group representing health insurers warned that the bill could destabilize insurance markets and “weaken Medicaid coverage of mental health and opioid addiction.”
Lawmaking is hard not just because it requires smart people to understand the issues they are legislating. It is hard because it is a game of coalition building. There are many, many players with a stake in the American health care system, and many of these players are wealthy, well-established, and have highly respected members within each lawmaker’s constituency.
Several of these groups can potentially kill major legislation, and all of them can place significant pressure on lawmakers to vote “no.”
Yet Ryan and Trump did virtually none of the work necessary to build the coalition they needed to pass a bill.
The most cloistered branch
A judge’s job is, in many ways, easier then the job of a policy maker trying to bring a bill to enactment. At the appellate level, which is the only level Gorsuch has served at, each case typically arrives neatly packaged with a blue brief written by lawyers for the party that lost in the court below, and a red brief presenting arguments for the side that won. There’s another document, known as a “joint appendix,” which compiles all the evidence in the case that the lawyers think the judges may need to look at. And there may be a reply brief or a few amicus briefs.
An appellate judge’s chambers typically follows a pretty predictable pattern. A law clerk reads through the briefs, researches the underlying caselaw, references the joint appendix, and the writes their judge a memo advising him or her on how they should decide the case. Then the judge, armed only with the memo and the same tools the clerk used to write it, makes their assessment.
It is a largely monastic lifestyle. Many judges literally work in a marble palace, read papers in comfortable offices, decamp occasionally to hear lawyers deliver brief oral arguments, then retreat back to their cloister. Appellate judges typically hear cases as a member of a three-judge panel, and the judges communicate with each other through formal letters as much as they do in person or via telephone. It takes just two votes to change the world — and five votes to either bless or reverse that change at the Supreme Court.
The process of handing down a judicial opinion, in other words, bears no resemblance to the process of legislating. Judges do not consult with outside interest groups to determine how their opinion will impact the nation. They don’t build coalitions. Or examine public sentiment in the way lawmakers must if they expect to keep their job. Or even communicate with the public about how they view a case (outside of whatever they may reveal during question at oral argument).
At the Supreme Court, there’s even a special dining room where the clerks eat together so that their conversations about pending cases are not revealed to the outside world.
This is the environment where Republican policymaking has thrived. If “democracy dies in darkness,” as the Washington Post now proclaims at the top of its newspaper, the GOP has thrived in the darkest, least democratic place within our government.
There’s probably a reason for this — the Republican Party’s agenda is unpopular. The Ryan/Trump health bill had an astoundingly low 17 percent approval rating shortly before Ryan canceled the vote on it. Polling data suggets that more Americans believe in “spells or witchcraft” than the percentage that agree with the fundamental assumption underlying the Citizens United decision. Contrary to the Supreme Court’s decision in Hobby Lobby, a Pew poll found that 67 percent of Americans believe that employers with a religious objection to birth control “should be required to provide it in health insurance plans for their employees just as other employers are required to do.”
Of course, the whole point of having an independent judiciary is that sometimes the law commands unpopular results, so judges should not be condemned solely because they reach decisions that most of the nation doesn’t like. Nevertheless, it is telling that so many of the biggest Republican victories in the Supreme Court — including Citizens United, Hobby Lobby, and the decision throwing out much of the Voting Rights Act — all cast aside longstanding assumptions about what the law requires in order to reach a conservative result.
Indeed, at oral arguments in Shelby County v. Holder, the Voting Rights Act case, the late Justice Antonin Scalia argued that courts had an obligation to toss out the law because it had enjoyed widespread support in the legislature. “I don’t think there is anything to be gained by any Senator to vote against continuation of this act,” Scalia claimed. “And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution.”
The fact that Congress repeatedly voted to reauthorize the act with lopsided majorities, Scalia told Solicitor General Donald Verrilli, was “very likely attributable to a phenomenon that is called perpetuation of racial entitlement.”
Barring unexpected events, it is likely that Gorsuch will soon be confirmed to fill Scalia’s old seat on the Supreme Court. If anything, Gorsuch’s record suggests that he will be even more conservative than Scalia. Judge Gorsuch joined with conservatives on his current court in supporting Hobby Lobby. He has ambitious plans to weaken federal agencies such as the EPA. In the middle of Gorsuch’s confirmation hearing, the Supreme Court unanimously overturned Gorsuch’s effort to significantly weaken a law protecting disabled children.
Should he join the Supreme Court, Gorsuch will undoubtedly prove quite deft at advancing his agenda. It’s easy when you don’t have to deal with the messy process that is democracy.