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Please begin with an informative title:

President Obama and Sonia Sotomayor
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 This is the source of Republican extremism: the conviction that the governing model is obsolete.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)


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Discussing Brooks' column, Ed Kilgore wrote:

Given his habit of perpetually posing as the Columnist From Dover Beach, forever wheeling eagle-like above the grubby partisan pols with their petty concerns (before landing, inevitably, somewhere amidst the ignorant army of the Right), it’s refreshing to see David Brooks in his latest column just coming right out and making the case for his party, the GOP. [...]

Yes, that whole social-democratic thing from the 20th century has to be “replaced” by something “market-oriented,” i.e., by little on the pathway to nothing. I wonder what other shopworn vestiges of the 20th century need to be junked to avoid disaster and make way for progress? Unions, surely. Perhaps the minimum wage, or the 40-hour-work week (already fading fast). Public schools, those bureaucratic relics of the “industrial age,” probably strike Brooks as insufficiently nimble and entrepreneurial, certainly for children in his social circle. And who needs civil rights laws any more? Isn’t the real racism on the Left? Reproductive rights? Haven’t ultrasound and (as his Times colleague Ross Douthat suggests) other biomedical advances made those as dangerously obsolete as Social Security?

Ed is right but understates exactly what Brooks is endorsing—which is the extreme far right agenda of "drowning the government in a bathtub" in constitutional terms. "Extremism in defense of liberty" is no longer wedded to attacking "judicial activism." Judicial activism is now a centerpiece of the conservative project. And Brooks endorses that extreme right-wing view as well. Consider his column holding up Alexander Hamilton as a champion of small limited national government. I noted:
When Alexander Hamilton is invoked to support, in essence Herbert Spencer's Social Statics and Lochnerisim, as Brooks does today, it is an act of dishonesty. The reason is we think of Alexander Hamilton as the most important voice in defining the power of the national government as embodied by the Constitution. While Hamilton may have had policy views that mirror Brooks' embrace of Social Statics and Lochnerism, he was wise enough to help create a  federal government that had wide power to address national problems in a manner which the national government deemed fit.

To invoke Hamilton in support of limited government, knowing his critical role as a Founding Father, is to write dishonestly. Brooks is dishonest here because his clear implication is that the Constitution itself reflects Brooks' Lochnerian constitutional views. It does not and Hamilton would no doubt be the person most surprised to see himself used as "a champion" of a limited national government.

Brooks points to Europe and sees evidence that supports his call for "small, limited government." In reality, Europe today resembles the United States before the adoption of the Constitution, when an ineffectual central government was unable to address the national problems of the country. The European Union is a confederation similar to the United States under the Article of Confederation. Its problems are a warning against this Brooksian vision, not evidence of its superiority.

The next president will likely be picking justices to the Supreme Court who will either help defeat this constitutional vision or enshrine it. President Obama will choose justices who respect the Constitution's national framework, as envisioned by Hamilton. A President Romney will choose Brooksian anti-federalists, committed to the destruction of our constitutional framework of a strong national government.

That's what's at stake. The re-election of President Obama is the most important progressive project in this election year. You don't have to love or even like what the president has accomplished in his first four years to understand this.

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