Updated at 4:37 p.m. ET on October 24, 2020.
“I’d like to terminate Obamacare,” President Donald Trump said at Thursday night’s debate. He said he hoped that the Supreme Court, flush with six conservative justices after Judge Amy Coney Barrett’s likely confirmation, would take care of the job for him. “Now it’s in court, because Obamacare is no good.”
Trump’s argument is an awkward one, and not only because it’s a toxic message in the closing days of a campaign that’s occurring against the backdrop of a global pandemic. At last week’s confirmation hearings for Barrett, Trump’s Republican allies on the Senate Judiciary Committee repeatedly threw cold water on the lawsuit, which the Supreme Court will hear on November 10. As Democrats drew attention to the risk that the Supreme Court might put the law to the torch, Republicans insisted that the lawsuit was unlikely to succeed and that it was unfair to assume that Barrett would be as reckless as the man who nominated her. Democrats accused Republicans of disingenuousness; Republicans accused Democrats of fearmongering. The ensuing debate was as loud as it was unedifying.
All that noise obscured two deeper truths. The first is about the nature of constitutional change, and it helps explain why Senate Republicans have a point when they question the viability of a lawsuit whose goals they share and that the White House supports. The second is about the threat that the conservative Supreme Court poses to democracy. A Justice Barrett may be unlikely to topple the Affordable Care Act, but she’s a foot soldier in a conservative legal movement that has armed itself with the tools to subvert Congress’s ability to govern.