“So, the Heritage Foundation said let’s do an individual mandate because it keeps it (health care reform) within free enterprise. The alternative was single payer. And they didn’t want that, and I’m in sympathy with that. So now all of a sudden the free-market alternative becomes unconstitutional and terribly intrusive where a government imposition and government-run project would not be? I don’t get it. Well, I do get it. It’s politics” Liberal-conservative Charles Fried commenting on the the Randy Barnett-led conservative campaign, which aims to use the Supreme Court to kill Obamacare.
Say you want to get something done: Address the problem of the predatory, unregulated health care industry which is sapping the economic strength of responsible employers and the working class, causing crisis within the working class and foisting the costs of an unhealthy, traumatized populace upon the state, capital productivity, and society.
If you wanted to do something, you would have had to coordinate a massive protest + polity campaign, first to get a President who would and could appoint progressive judges to the Supreme Court, and then to press for universal Medicare, with the state being a single buyer of services (to negotiate medical rents down). Given the judiciary is conservative, this is a long-term project at this point. There is no other road. If you wanted to get social reform accomplished, you cannot compromise with class warrior conservatives, because even though they own Congress, they own the judiciary more. Ideologically, Republicans and other class warrior conservatives will not tolerate the idea that any policy that strengthens the working class strengthens the capitalist class or economy.
Illustrated: the difference between Fried (a Reagan-era conservative = Democrat) and Barnett class-warrior conservatives is that the former agree that something had to be done about health care cost and access in the US–and something could be done that would benefit capital. Whereas the latter are “Let them eat cake” Malthusians. The Barnett class-warrior conservatives believe that the working class should be miserable, in crisis, and dead young (The elitist Supreme Court judges laughed merrily at the idea of working-poor families booted off health insurance.), and on principle no state should stand in the way of that proper “market”/god-given outcome. Following feudo-capitalist British tradition, as long as US military troops and mercenaries are competitive in imperial war, there is no need for class compromise or social amelioration in Malthusian conservatives’ view. Might makes right.
Oh the dinosaurs will roam the earth, and resume their bloody reign.
Political Problem: The Supreme Court is a Fundamental Enemy of Democracy
Robin plumbs another depth to conservative strategy: The reason why the Supreme Court agreed to hear this challenge to Obamacare as a matter of constitutional law is because that conservative court has been using the Constitution’s commerce clause to work toward constructing the class-warrior legal interpretation: broadly, the interpretation that the Constitution does not give Congress the authority to create working class-supportive social institutions (eg. Medicare, food assistance, Medicaid, Social Security, etc.). This conservative constitutional interpretation would illegalize all institutions of the welfare state, making the US a night watchman state.
Doug Henwood and Daniel Lazare argue that with one exception-that-proves-the-rule (post-FDR) period, history has shown that the Supreme Court is hopelessly anti-democratic. Robin explains the elitist Supreme Court problem for democrats: The commerce clause hasn’t always been an obstacle to progressive social change. Iff you had a social movement in place, and iff you ALSO had a president who was able to appoint Supreme Court justices who wouldn’t strike down all progressive legislation, the commerce clause could be turned to freedoms expansion.
So after Roosevelt’s liberal judicial appointments, and with social movement pressure, for a couple decades justices used the commerce clause to authorize Social Security, the Wagner Act, the Civil Rights Act, and more. But social movement is not enough. There were social movements in the US for many decades that managed to pass legislation, and it all got struck down by the Supreme Court.
Unless you struggle to abolish the Supreme Court or pass an amendment that radically restricts its authority, it’s going to wield that authority and strike down freedoms-expanding legislation.
The only temporary alternative is if a social movement can over time both advance a President who will appoint new progressive judges and maintain the disruption and pressure needed to advance progressive, freedoms-expanding legal interpretation.