Why the G.O.P. doesn’t need to try to pass mostly unpopular policies through the elected branches.
Not so long ago, Republicans had one of the most ambitious legislative agendas of any political party in modern American history.
Devised by the former House speaker, Paul Ryan, the so-called Ryan budget sought to reduce much of the nation’s social safety net to ashes. Congressional Republicans planned to slash Medicaid spending and food stamps. In the most aggressive version of Mr. Ryan’s proposal, Republicans would have replaced Medicare with “premium support” vouchers that could be used to buy private insurance, and then reduced the value of this subsidy every year — effectively eliminating traditional Medicare over time.
But all of that has changed. The Ryan budget is a relic. At their 2020 national convention, Republicans didn’t even bother to come up with a new platform.
Yet while the party appears to have no legislative agenda, it’s a mistake to conclude that it has no policy agenda. Because Republicans do: They have an extraordinarily ambitious agenda to roll back voting rights, to strip the government of much of its power to regulate, to give broad legal immunity to religious conservatives and to immunize many businesses from a wide range of laws.
It’s just that the Republican Party doesn’t plan to pass its agenda through either one of the elected branches. Its agenda lives in the judiciary — and especially in the Supreme Court.
From 2011, when Republicans gained control of the House of Representatives and denied President Barack Obama a governing majority, until the pandemic forced legislators’ hands in 2020, Congress enacted hardly any major legislation outside of the 2017 tax law.
In the same period, the Supreme Court
- dismantled much of America’s campaign finance law;
- severely weakened the Voting Rights Act;
- permitted states to opt out of the Affordable Care Act’s Medicaid expansion;
- expanded new “religious liberty” rights permitting some businesses that object to a law on religious grounds to diminish the rights of third parties;
- weakened laws shielding workers from sexual and racial harassment;
- expanded the right of employers to shunt workers with legal grievances into a privatized arbitration system;
- undercut public sector unions’ ability to raise funds; and
- halted Mr. Obama’s Clean Power Plan.
Now, a 6-to-3 conservative-majority Supreme Court is likely to reshape the country in the coming decade, exempting favored groups from their legal obligations, stripping the Biden administration of much of its lawful authority, and even placing a thumb on the scales of democracy itself.
Many of these changes would build on decisions handed down long before President Donald Trump reshaped the Supreme Court. The court, for example, first allowed employers to force workers to sign away their right to sue the company — locking those workers into a private-arbitration system that favors corporate parties — in a 2001 case, Circuit City v. Adams. But the court’s current majority is likely to make it much harder for workers and consumers to overcome these tactics. In Epic Systems v. Lewis (2018), Justice Neil Gorsuch wrote the court’s majority opinion favoring an employer that forced its employees to give up their right to sue.
Similarly, in the 2014 case Burwell v. Hobby Lobby, the Supreme Court held that businesses seeking a religious exemption from a law may have it — holding, for the first time, that such exemptions may be allowed even when they diminish the rights of others. That case permitted employers with religious objections to birth control to deny contraceptive coverage to their employees, even though a federal regulation required employer-provided health plans to cover contraception.
Before Justice Amy Coney Barrett joined the Supreme Court, however, a majority of the justices were very reluctant to grant religious exemptions to state regulations seeking to limit the spread of Covid-19. Yet after she became a justice, the court’s new majority started granting such exemptions to churches that wanted to defy public health orders.
It’s plausible that the Republican Party did not campaign on its old legislative agenda in 2020 because it was busy rebranding itself. Under Mr. Trump, Republicans attracted more working-class voters, while Democrats made gains in relatively affluent suburbs. So Mr. Ryan’s plans to ransack programs like Medicaid aren’t likely to inspire the party’s emerging base.
And yet the court’s conservative majority is still pushing an agenda that benefits corporations and the wealthy at the expense of workers and consumers.
It’s easy to see why government-by-judiciary appeals to Republican politicians. There’s no constituency for forced arbitration outside of corporate boardrooms. But when the court hands down decisions like Circuit City or Epic Systems, those decisions often go unnoticed. Employers score a major policy victory over their workers, and voters don’t blame the Republican politicians who placed conservative justices on the court.
Judges can also hide many of their most consequential decisions behind legal language and doctrines. One of the most important legal developments in the last few years, for example, is that a majority of the court called for strict new limits on federal agencies’ power to regulate the workplace, shield consumers and protect the environment.
In Little Sisters v. Pennsylvania (2020), the court signaled that it’s likely to strike down the Department of Health and Human Services’s rules requiring insurers to cover many forms of medical care — including birth control, immunizations and preventive care for children. And in West Virginia v. E.P.A. (2016), the court shut down much of the E.P.A.’s efforts to fight climate change.
Yet to understand decisions like Little Sisters and West Virginia, a reader needs to master arcane concepts like the “nondelegation doctrine” or “Chevron deference” that baffle even many lawyers. The result is that the Republican Party’s traditional constituency — business conservatives — walk away with big wins, while voters have less access to health care and breathe dirtier air.
By legislating from the bench, Republicans dodge accountability for unpopular policies. Meanwhile, the real power is held by Republican judges who serve for life — and therefore do not need to worry about whether their decisions enjoy public support.
It’s a terrible recipe for democracy. Voters shouldn’t need to hire a lawyer to understand what their government is doing.