How Democrats Plan to Turn Kennedy’s Retirement Into a Political Win

When life gives you jurisprudential lemons, make political lemonade. Photo: Tom Williams/CQ-Roll Call,Inc.

Anthony Kennedy’s retirement last week was widely hailed as the Supreme Court justice’s parting gift to the Republican Party. The Washington Examiner touted Kennedy’s exit as the GOP’s “golden ticket” for erasing “the Democrats’ critical edge in voter enthusiasm.” The National Review, the Washington Post, and the Associated Press all told similar tales — a high-profile fight over confirming the fifth vote against Roe v. Wade would energize religious conservatives; eat into Democrats’ turnout advantage; and, thereby, strengthen the Republican Party’s grip on unified government.

But Democrats beg to differ. Or, at least, they have a plan to prove the punditocracy wrong.

For over a year now, the Democratic Party has been trying to turn the 2018 midterms into a referendum on the GOP’s health-care policies — and for good reason: Paul Ryan’s Obamacare repeal bill ended up being the most unpopular piece of major legislation in our nation’s modern history. Shortly after its introduction last spring, Democrats opened a double-digit lead in the 2018 generic ballot, while President Trump’s job approval dipped. Subsequent surveys have shown the public favoring the Democrats over the Republicans on health care by wide margins.

And their preference is understandable: Out-of-pocket health-care costs are rising for virtually everyone in the United States. Drug prices are resolutely high, premiums on the individual market are skyrocketing (thanks to the GOP’s tireless efforts to sabotage said market), and the average deductible for those with employer-provided insurance has increased by nearly 400 percent since 2006. The Democratic Party’s prescription for these ills is government-imposed price controls, and more subsidies for ordinary Americans’ health-care costs, paid for by higher taxes on the rich (details vary from Democrat to Democrat, of course, but the direction is the same). The Republican Party, by contrast, is offering little beyond trillion-dollar cuts to Medicaid and the repeal of protections for people with preexisting conditions — all papered over with mealymouthed appeals to the beauty of block grants and consumer choice.

Virtually no one (who hasn’t attended a Koch Network fundraiser) favors door No.2. Most of the Republican base actually supports increased federal spending on health care, thinks that protections for preexisting conditions are “very important,” and believes that Obama’s Medicaid expansion should be preserved (so long as you leave out the “Obama” bit).

The challenge for Democrats has been keeping health care salient. As Republican congressman (and longtime GOP strategist) Tom Cole told CNN in May, “It’s hard to beat you on a vote you didn’t succeed on. The ACA wasn’t repealed, and the only part of it that was was the least popular part: the individual mandate.”

But early last month, the Trump administration made the Democrats’ task a bit easier — by picking a fight over the ACA’s most popular provision. In defiance of long-standing norms, settled law, and its party’s political interests, Jeff Sessions’s Justice Department pledged its support to a lawsuit contending that Obamacare’s protections for people with preexisting conditions are unconstitutional. Specifically, the DOJ announced that it wouldn’t defend the ACA from a challenge brought by 20 red states, which claims that Congress’s repeal of the individual mandate rendered the law’s regulations of the insurance market unenforceable.

Now, Kennedy’s retirement ensures that the administration’s crusade to make chemotherapy into a luxury good will be aired in high-profile, Senate hearings in the run-up to November’s elections.

“This is the most important Supreme Court vacancy for this country in at least a generation,” Chuck Schumer said on the Senate floor last Wednesday. “Nothing less than the fate of our health care system …[is] at stake.”

Of course, whoever Trump nominates to replace the “swing” justice is unlikely to disclose his or her views on cases currently moving through the courts. But given that the White House is only considering rock-ribbed reactionaries for its high court pick, Democrats should have little trouble finding evidence that his nominee is no fan of the Affordable Care Act. And the party will even be able to call the president, himself, as a corroborating witness:

(Chief Justice Roberts declined to strike down Barack Obama’s signature legislative achievement on specious grounds in 2012, much to Anthony Kennedy’s chagrin.)

“Republicans had hoped they put a Band-Aid on the self-inflicted wounds that came from health care repeal and gutting protections for people with preexisting conditions,” Jesse Ferguson, a Democratic strategist, told Axios. “Then, Donald Trump ripped the Band-Aid off with his lawsuit to overturn those protections and now the fight over his Supreme Court Justice will pick the scab.”

But the threat that Trump’s new justice will pose to health care extends well beyond the ACA. A more uniformly far-right Supreme Court majority could also give red states the green light to eviscerate Medicaid. As Axios’s Caitlin Owens explains:

Many conservative lawyers and judges say private entities — like health care providers — shouldn’t be able to sue over Medicaid’s coverage decision. If that view ultimately prevails, states could make much bigger cuts without the threat of a lawsuit.

The Supreme Court ruled in 1990, in Wilder v. Virginia Hospital Association, that providers can sue over inadequate payment rates. Kennedy dissented from that ruling, and later helped to narrow its scope — but the court never fully closed the door on provider lawsuits.

Kennedy “was willing to leave the courthouse doors open in Medicaid cases, whereas the conservative majority is willing to shut it – I mean, really slam it,” said Sara Rosenbaum, a George Washington University law professor.

This issue is a live one: Kansas and Louisiana have been trying to deny Medicaid funds to Planned Parenthood clinics. Two federal appeals courts have ruled that the states can’t do that. But in a nearly identical case in Arkansas, a federal court concluded that Planned Parenthood didn’t have standing to sue over the issue. Now, Kansas and Louisiana are asking the Supreme Court to take up the issue.

Democrats would love to have a fight over Medicaid funding (the program currently boasts a 74 percent approval rating). But they’re more than happy to do battle over Planned Parenthood, or Roe v. Wade, too — a supermajority of the American public approves of the former organization, and opposes the repeal of the latter Supreme Court decision.

The Democrats will, of course, try to use these issues to block the confirmation of a far-right justice. Lisa Murkowski and Susan Collins are self-avowed pro-choice Republicans, who voted against repealing the Affordable Care Act last year — and if both of them vote against Trump’s pick, and every Democratic senator toes the party line, Kennedy’s seat will remain empty. Democratic groups are running ads in Bangor, Maine, and Anchorage, Alaska, in hopes of bringing that outcome about.

Still, it remains unlikely that Collins and Murkowski would veto a Supreme Court nominee with conventional qualifications. The combination of intraparty pressure and norms of deference to presidential appointments seem destined to overwhelm their (supposed) substantive beliefs.

Fortunately for Democrats, the arguments that could ostensibly sway Collins and Murkowski are roughly the same as those that the party wishes to disseminate to female swing voters in suburban congressional districts this fall: Supporting the Republican Party is a threat to your health, and every woman’s reproductive autonomy.

Whether that message will do more for the Democrats than a high-profile fight over Kennedy’s replacement will do for GOP turnout is unknowable. But it’s worth remembering that the Democratic Party’s initial turnout advantage derived from its base’s eagerness to rectify a traumatic loss — and the Republican base’s complacency, in the face of triumph. In all likelihood, Kennedy’s replacement will be confirmed more than a month before the midterms. Conservatives will have locked in a far-right majority; liberals will be reeling from nightmare visions of Roe’s imminent demise. It isn’t hard to see how such circumstances could exacerbate the GOP’s turnout problem, rather than mitigating it.

In the first generic ballot poll taken after Kennedy’s retirement, Quinnipiac University puts the Democratic lead at nine percentage points — three points higher than it was in early June.

Dems Plan to Turn Kennedy’s Retirement Into a Political Win