It has been widely reported that in this week’s Supreme Court hearing on the Affordable Care Act, a number of conservative Justices expressed sentiments which led Court observers to suggest that the Court will reject the Republican challenge. My comment: this may have become a political softball for the Court’s conservatives. The law is enmeshed in our country’s healthcare system, and to find it unconstitutional will create chaos during the ongoing COVID pandemic and wreak havoc on a huge part of the American economy. There is a legal rationale to let it stand – providing the appearance that the Court is open-minded and taking some of the steam out of partisan Democrats calling for the Court’s drastic reorganization. I’m guessing that the vote will ultimately be at least 6-3 to uphold the law, and wouldn’t rule out the possibility of a unanimous Court.
In the same vein: I’ve sensed throughout Chief John Roberts’ tenure that his most fervent hope is that “his” Court will never be called upon to decide a bitterly partisan political dispute over presidential succession such as Bush v. Gore. That said, inasmuch as the results of the Biden-Trump contest are sufficiently clear, Mr. Biden’s victory is supported by the vote in a wide variety of states, and no credible evidence of voting irregularities has surfaced that would materially affect the election’s outcome, I’m not sure that the Chief Justice, and Justices Brett Kavanaugh and Amy Coney Barrett, might not want to have one of the President’s bizarre legal challenges reach them – so they can vote against him. As with any Court decision upholding the Affordable Care Act, it will enable the two junior Justices to shed some of the partisan taint that will otherwise forever dog them and their legacies among liberal legal and public policy commentators.
As to the Republicans: As President Trump’s petulance continues with regard to an election that all – including him – know that he lost by a clear, if in some states not overwhelming, margin, I would suggest that Republicans perhaps fall into three categories:
The (somewhat) politically brave: Republican Senators including Mitt Romney, Lisa Murkowski, Susan Collins, and Ben Sasse, who have acknowledged that Mr. Biden won. (There are a few other Republican Senators, such as James Lankford, Marco Rubio, Pat Toomey and John Cornyn, who have had the patriotic temerity to suggest that President-Elect Biden should be provided access to national security information, although they haven’t acknowledged Mr. Biden’s victory.) I consider even the first group only “somewhat” brave because they have either just won re-election and/or manifestly maintain standing with their constituents apart from Mr. Trump.
The scurrilous: The political hacks pandering to Mr. Trump’s whims and putting party over country, whether due to political cowardice or deep (and frankly, un-American) partisanship. This is the majority, but I want to single out for particular mention Wisconsin’s own Senator Ron Johnson, who keeps inhaling oxygen that the rest of us could put to better use. (Below for your viewing pleasure is a link to the Talking Points Memo article, “The Award For Most Bad Faith Refusal To Acknowledge Biden’s Win Goes To… Ron Johnson.”)
Those at the epicenter: This may sound a bit Pollyannish, but I would submit that there may be some appearing to placate the President that are actually desperately striving to keep our democracy functioning at a time of continuing uncertainty. While some of those within the Administration, such as Vice President Mike Pence and Secretary of State Mike Pompeo, seem to be putting up with behavior that none of us would tolerate in a 3-year old, I would offer this: we would probably placate the 3-year old if he walked into the room waving a loaded gun. That may be where we are right now. As deferential as Messrs. Pence and Pompeo appear, and notwithstanding the fact that each obviously harbors post-Trump political ambitions, former Trump Administration National Security Advisor John Bolton – himself no coddler – makes pretty plain in The Room Where It Happened that there were times that Messrs. Pence and Pompeo kowtowed to the President in order to maintain sufficient influence with him to nudge him from disastrous impulses such as withdrawing the United States from NATO. As for Attorney General William Barr, it may be worthy of note that his recent Memorandum, altering the policy of the Department of Justice’s Public Integrity Section’s Election Crimes Branch to authorize U.S. Attorneys to investigate voting irregularities before election results are certified, cautioned against the U.S. Attorneys’ pursuit of “specious, speculative, fanciful or far-fetched claims.” Given the lack of credible claims of voter fraud that have surfaced since the election, Mr. Barr’s Memorandum could be designed entirely to keep a childlike President from wielding his power to the detriment of the Republic.
“Only those that lived through the fervid atmosphere of those months can fully appreciate the debt the nation owes [Nixon Administration Chief of Staff] Al Haig. By sheer willpower, dedication, and self-discipline, he held the government together. … He served his President loyally but never forgot his duty to his country. His methods were sometimes rough … But the role assigned to Haig was not one that could be filled by choir boys. He had to preserve the sinews of America for its indispensable mission of being the last resort of the free, the hope of the oppressed, and the one country that with all its turbulent vitality could be relied upon to walk the paths of mercy. It is not necessary that in an hour of crisis America’s representatives embody all of these qualities so long as they enable our nation to do so. … [H]e sustained the President while moving him toward the resignation that Nixon dreaded, resisted, and yet knew increasingly to be inevitable. Haig kept the faith with his President and he kept it with the institutions of this country.”
Henry Kissinger: Years of Upheaval
Hopefully, such will be the case now, as it was in 1974.