The big wigs over at Fox "news" must be at least somewhat concerned about their viewers looking unfavorably on losing their health insurance, or protections for those with preexisting conditions going away, because they're working the refs awfully hard to convince them that Trump's choice to replace Ruth Bader Ginsburg on the Supreme Court won't do what just about everyone else assumes she will do when the case on the Affordable Care Act comes before the court shortly after the presidential election.
An article from Vox this weekend explained why most believe Amy Coney Barrett is likely to undercut the ACA:
In 2017, Barrett wrote a lengthy review of Our Republican Constitution, a deeply radical book by libertarian law professor Randy Barnett, which argues that huge swaths of American law are unconstitutional and should be struck down by judges.
To her credit, Barrett largely rejected Barnett’s proposal to turn much of American governance over to heavy-handed judges. While Barnett “offers a fulsome explanation of why we should mistrust legislatures,” the future Supreme Court nominee wrote, “he spends less time defending the institutional capacity of the courts.”
Toward the end of her review, however, Barrett does single out two cases — NFIB v. Sebelius (2012) and King v. Burwell (2015) — and suggests the courts should have taken a more aggressive approach in those decisions. Both NFIB and King largely rejected partisan attacks on the Affordable Care Act.
In NFIB, Judge Barrett writes, “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute.” Likewise, Barrett appears to endorse Justice Scalia’s dissenting opinion in King, which attacks the majority for its supposed willingness to “rewrite” Obamacare in order to save it.
“For Justice Scalia and those who share his commitment to uphold text, the measure of a court is its fair minded application of the rule of law, which means going where the law leads,” Barrett writes. “By this measure, it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result.”
Many fair-minded lawyers — including the six justices who joined the majority in King — would no doubt take issue with Barrett’s suggestion that King distorted the text of Obamacare. But if Barrett is confirmed to the Supreme Court, it won’t really matter what those lawyers think. If Barrett is a justice, she’ll be free to vote against Obamacare even if her reading of the statute is idiosyncratic.
Barrett is unlikely to follow past decisions upholding Obamacare simply out of loyalty to precedent. In a 2013 article, she suggested that justices should not feel bound by precedents that they strongly disagree with.
“I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it,” Barrett wrote in that piece. Thus, if Barrett concludes that a decision like NFIB is “clearly” in conflict with the Constitution, she is likely to ignore it.
On this weekend's Fox News Sunday, guest host Brit Hume was working the refs hard during every single interview on the show trying to convince his audience that they have nothing to fear from Barrett, and tried to downplay Michigan Sen. Debbie Stabenow's warnings about the threat Barrett represents to the ACA.
Louisiana Sen. John Kennedy made an appearance on the show immediately following Stabenow and was asked by Hume about her remarks. Kennedy, as we've come to expect from him, played the game of calling Stabenow a "friend" and then immediately lobbing childish insults at her.
KENNEDY: Senator Stabenow is my colleague and I consider Debbie a friend, so I say this gently. Sell crazy somewhere else. We're all stocked up here.
Unless Debbie is clairvoyant, I don't think she knows how the nominee is going to vote or any other member of the United States Supreme Court, but Debbie makes the point, the difference between Democrats and Republicans in terms of the role of the Supreme Court, my Democratic friends think the Supreme Court ought to be a mini Congress, they're politicians without robes.
They don't even need to hear cases. They already know how they're going to vote. And that's part of the problem. That's not how I view the appropriate role of the Supreme Court, and I don't think that is how it operates.
You're going to see a lot of evidence-free accusations.
There are a whole lot of "evidence-free accusations being lobbed by members of Congress, but they're coming from the likes of Kennedy and his fellow Republicans. There's plenty of evidence -- as the Vox article and others have laid out -- for everyone who would like to see the ACA remain intact to have concerns about her appointment to the court.
Kennedy wrapped things up by twisting himself in knots trying to defend their blatant hypocrisy with moving forward with this nomination in the first place given the lies they told justifying holding up Obama's nominee for ten months and using the upcoming election as an excuse back in 2016.
Now it seems that the roles are reversed. The president has made a nomination. It is an election year, indeed it is very close to the election and the view and the other Republicans are prepared to move forward with this, which is distinct obviously from the course you took just four years or so ago. You're being accused of hypocrisy and double standards. How do you answer?
KENNEDY: Well, let me finish my last first, to Debbie and my colleagues in the Senate. I hope they let us have a respectful process. We don't need another freak show. I hope they won't get into the foothills of kinky and bring back Michael Avenatti all about other stuff. Let us focus on the nominee.
Now to answer your question, I'm rather fond of the Constitution. I have read it. Its provisions about filling a supreme court vacancy are unaffected by the electoral calendar. I realize that on both sides, Brit, there's been a lot of circumlocution and attempted Churchillian rhetoric about the precedent to be followed during an election year to fill a vacancy.
Here's as best as I can tell, here's the rule. When the Democrats are in charge of the process, they do what they think is right, consistent with the Constitution. When the Republicans are in charge of the process, they do what they think is right.
And I think that's what our founders intended. I think our founders intended elections to have consequences and when they send people to Washington of a particular party, they expect them to represent their voters. And I think that's been the tradition and the precedent.
I wonder what Senator John Kennedy is going to tell his Louisiana constituents after Barrett does actually vote to take health care away from millions of Americans in the middle of a pandemic shortly after the presidential election. I await the revisionist history that's sure to come.