What's at stake: The SCOTUS and undoing The New Deal

President Obama with Justice Sonia Sotomayor

In the 1950s, Dwight Eisenhower reconciled Republicans to the 20th-century welfare state. Between Ike and George W. Bush, Republican leaders basically accepted that model. Sure, they wanted to cut taxes and devolve power, but, in practice, they sustained the system, often funding it more lavishly than the Democrats. But many Republicans have now come to the conclusion that the welfare-state model is in its death throes. [. . .] This is the source of Republican extremism: the conviction that the governing model is obsolete. It needs replacing.  - David Brooks

In the next 10 days or so, the Supreme Court will issue its decision in the cases challenging the constitutionality of the Affordable Care Act (ACA.) One of the results of the decision will resolve whether the ACA survives in any form. Obviously this result is extremely important. But there is another result that will be signalled by the SCOTUS' ACA decision'will the Roberts Court be the engine for executing the Republican project to undo The New Deal and the government programs that followed its lead such as Medicare and Medicaid?

David Brooks' confession of the extremism of the modern Republican project is both bracing and welcome. For too much of this national debate, the pretense of moderation and reasonableness has been granted the radical Republican project and the radical Roberts Court. With regard to the Court, Linda Greenhouse writes about recent opinions of the Court members that touch upon the Equal Protection Clause in novel ways:

But what if the majority and the dissent, while skirting a battle over 'first principles,' were nonetheless shadowboxing in this case over something highly significant? Something, for instance, like government regulation of the market for health care? At the end of his dissenting opinion, Chief Justice Roberts conceded that the justices in the majority had much of the weight of modern history on their side. 'Our precedents do not ask for much from government in this area,' he said, adding that 'we give great leeway to taxing authorities in this area, for good and sufficient reasons.' Then comes this line: 'But every generation or so a case comes along when this court needs to say enough is enough, if the Equal Protection Clause is to retain any force in this context.'

Enough is enough? In the context of the Commerce Clause, of course, that's the basic argument of the plaintiffs in the health care case. But try to import the chief justice's 'enough is enough' from the one context to the other, to predict the imminent outcome of that case, and the microscope's lens becomes blurry. For one thing, Justice Anthony M. Kennedy is part of Justice Breyer's majority in the Indianapolis case. It's hard to imagine that the court could muster the votes to strike down the Affordable Care Act without Justice Kennedy on board. [Emphasis supplied.]

Right now, the extreme Republican project to undo The New Deal is subject to the whims of Justice Kennedy, whose notion of what the Constitution permits is generally based on whether Justice Kennedy likes the congressional action or not. There is not much more to Justice Kennedy's constitutional theory than that. Would that lead to wholesale destruction of the constitutional underpinnings of The New Deal? Probably not. Kennedy probably thinks Social Security and Medicare and some forms of federal regulation of commerce are good. But the question will not end with Kennedy nor be fully resolved in the next few years. It is the next set of justices who will come to sit on the Court who will have the important say on this extreme Republican project.

And who those justices will be is what is at stake in the next presidential election. Four justices are in their 70s. The odds are someone will retire. One more extreme Republican vote to join Scalia, Thomas, Alito and Roberts, and there will be nothing stopping them.

(Continue reading below the fold)