The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Ilya Shapiro argues at The Federalist that some of the blame for the rise of Donald Trump belongs to Chief Justice Roberts' 2012 opinion in the Obamacare case, NFIB v. Sebelius. To a lot of readers, this probably sounds far-fetched. But I think Shapiro's argument inadvertently reveals something important about Trump's rise. In a weird way, there may be a causal connection between the Chief Justice's opinion and Trump's popularity. It's just not the connection Shapiro has in mind.
You'll recall that Sebelius upheld Obamacare's individual mandate under the Taxing Clause in an opinion by Chief Justice Roberts. In a different part of Chief Justice's opinion, joined only by himself, Roberts stated his view that the individual mandate was not additionally allowed under the alternative ground of the Commerce Clause.
According to Shapiro, the Chief Justice's reasoning had a profound impact on American politics. Here's the argument in steps:
1) When Chief Justice concluded that the individual mandate could not be upheld on the Commerce Clause alone, he "recognized that the Affordable Care Act was unconstitutional."
2) However, Roberts showed "contempt for the rule of law" by "refusing to follow his own logic" that Obamacare was unconstitutional when he nonetheless upheld Obamacare under the alternative taxing power.
3) Because the Court upheld Obamacare despite recognizing it was unconstitutional, the Court ruled in a "wholly extra-legal way" that was a "sucker punch" to the constitution-loving Republican base. This understandably "increased cynicism and anger at play-by-the-rules conservatives and decreased respect for institutions across the board."
4) Angry about the "twistifications" of the Court's ruling in a "wholly extra-legal way," GOP voters concluded that the way to "beat Obama" is to jettison constitutional government and instead turn to a "strongman" who wouldn't "bother with the Constitution."
5) Looking for a strongman who would just get results, GOP voters settled on Donald Trump.
(In his recent lecture at the Heritage Foundation, starting around the 23 minute mark, co-blogger Randy Barnett makes a somewhat similar argument.)
Some will dismiss Shapiro's argument as unlikely for a number of reasons. But I think there is a sort of connection at work, although one very different from what Shapiro suggests.
As I see it, the fact that Shapiro is willing to make his argument sheds light on a real cause of Trump's popularity. Shapiro's argument relies on what I'll call the politics of delegitimization. When someone does something you don't want, you say they acted for improper and corrupt reasons. It's part of a rhetorical strategy that has found particular favor on the political right since Obama was elected. That strategy, repeated hundreds of times in different contexts, was designed to further conservative and libertarian ends. And it sometimes worked. But in the long run, the strategy backfired because Trump coopted it. I think that unexpected backfiring is at least one cause of Trump's popularity.
Here's my thinking. A straightforward explanation for the Chief Justice's opinion in Sebelius is that Roberts voted to uphold the law because Congress only needs one constitutional basis for its authority. Roberts concluded that there was one such basis, the taxing power, and that was enough. Maybe Roberts was right and maybe he was wrong. But there's nothing extra-legal about the reasoning.
According to Shapiro, however, something much more sinister was afoot. The Roberts opinion was fundamentally deceitful. Shapiro presents the Commerce Clause part of the Chief's opinion as the true part of the opinion, in which Roberts was being a real judge honest to the law and his judicial oath. On the other hand, Shapiro presents the taxing power part of the opinion as a rotten trick that Roberts didn't actually believe.
Shapiro does not explain how we know this is what the Chief Justice was really thinking. It's just assumed. But I take the point of the narrative to be delegitimizing Sebelius in the minds of readers. If you're a casual reader, as most people are, you get the simple message that the Obamacare opinion wasn't a legitimate decision. It was a dishonest product of a corrupt court.
I don't mean to suggest that Shapiro alone is responsible for developing this line of thinking. This political narrative about Sebelius became popular on the right within hours of the opinion coming down. It has become the standard story about what really happened in the the case among conservative politicians.
And it's just one example of a broader rhetorical strategy of delegitimizing those on the other side that has found a lot of currency on the political right since Obama was elected. You can sometimes find the same narrative on the left, of course. But you don't find it nearly as often or as prominently as you find it on the right. You can see the strategy at work if you follow popular conservative news or commentary programs. Too often, people who are barriers to good results (whether they are Democrats or the GOP "establishment") aren't described as simply disagreeing in good faith. Instead, you'll often hear that they are illegitimate. They are acting in bad faith. Their motives are corrupt. Some are criminals. You hear that all the time.
What does this have to do with Donald Trump? A lot, I think. Donald Trump is the King of Delegitimization. It's his trademark move. And he's the master at it. As Trump tells it, the country is going down the tubes because everyone in power is corrupt. The President isn't trying to stop ISIS. The politicians only care about fat cat donors. No one will enforce the border laws. Political correctness forces leaders to lie about our problems and to ignore solutions. In Trumpland, no one in power is actually trying to help. They're all corrupt.
Self-proclaimed birther Donald Trump is now so doubtful of President Obama's birthplace that he's sent a team of his own investigators to Hawaii in hopes of getting to the bottom of the issue.
That's according to Trump himself, who, in an interview with NBC, warned his investigators just might uncover "one of the greatest cons in the history of politics and beyond."
According to Trump, everyone in government is running a con. Some run small cons and others run big ones. But they're all corrupt.
It's no surprise that Trump echoed this idea when he spoke about Chief Justice Roberts and the Obamacare case. Here's Trump last December:
"Justice Roberts really let us down," Trump told a crowd packed into a gymnasium at the University of South Carolina-Aiken. "What he did to Obamacare was disgraceful and I think he did it because he wanted to be popular in the beltway or something. . . ."
The Chief Justice is just another corrupt politician. He's running a con, too.
When you see Trump through this lens, the absurdly simplistic and even bizarre solutions he offers suddenly make a lot more sense. Trump is the anti-politician, the angel of anti-corruption, and he alone will actually try to help the people. Announcing goals is enough because only Trump will actually try to solve our problems. He will build a wall—a tangible and visible product anyone can understand—to enforce the border. He'll crush ISIS. And he's too rich to corrupt, so he won't be beholden to big donors. He may not succeed every time, the thinking runs, but he'll be the only one to try because he's the only one who is not corrupt. This explains why so many Trump supporters applaud Trump for "telling it like it is." Because everyone in government is corrupt, no one in government is telling it like it is. Only Trump can speak the truth.
I think the rise of Trump can be partly explained by the politics of delegitimization backfiring. Conservatives and libertarians used the strategy to rally the troops. They made it a standard move, and it became second nature over time. It came to work often in many different contexts. As it relates narrowly to Sebelius, I gather the goal of the Roberts corruption narrative was to establish a common wisdom on the right that the taxing power argument was dishonest and should be overturned someday. For those playing the long game, figuring that some of today's casual media consumers will become tomorrow's GOP-appointed Supreme Court Justices, establishing a shared sense on the right that only the joint dissent in Sebelius was legitimate could serve the libertarian end of perhaps making that the law someday.
The politics of delegitimization are hard to cabin once unleashed, however. With the pump primed, the King of Delegitimization Donald Trump capitalized on the dynamic and used it for very different ends with masterful effect. When a large audience is inclined to believe that everyone in government is corrupt, an outsider who excels at the politics of delegitimization can become a powerful political force regardless of his own politics. If everyone in power is corrupt, after all, politics no longer matters. There's no real difference between a corrupt conservative and a corrupt liberal. Trump made this point himself: "I'm a conservative. But at this point, who cares?"
In a sense, then, Shapiro may be partly right. Public perceptions of what Chief Justice Roberts wrote in Sebelius may have been a contributing factor—one among many, of course, but still a factor—in the Republican party turning to Donald Trump. But that perception was the result of a false narrative designed to delegitimize Roberts's decision. To the extent public perceptions of Sebelius made any difference, the fault for the rise of Donald Trump does not belong with Chief Justice Roberts. Instead, it belongs with those who tried to delegitimize the Roberts opinion for their own ends and had it backfire on them big-time.