In the first 48 hours after the surprising Supreme Court decision in the Obamacare case, after recovering from the initial shock, I was prepared to give Chief Justice John Roberts a break, the benefit of doubt about his intentions and rationale. I drank some of the cool aid from the conservative bloggers about the genius, the liberal baiting on the Commerce Clause, how he was “playing chess while everyone else was playing checkers”, and the underlying conservative instincts involved in the strategy and reasoning of the Chief Justice. But I have since read every analysis I could get my hands on and I have changed my view: While not entirely without merit in some of its by-products, this was a deeply flawed and disturbing decision, and not mainly because of the final outcome, but because of the manner in which it was reached.
I won’t get into the arcane nature of the tax vs. penalty issues in the insurance mandate; the dissent signed by Kennedy, Scalia, Thomas, and Alito and a brilliant analysis by the Wall Street Journal have performed a complete hatchet job on any credibility in this gambit. The big problem with this sleight of hand is that it results in a complete rewrite of the law, for the Roberts version with its massive tax on the middle class would have had no possibility of passing even the Democrat-controlled Congress that adopted it. So much for a non-activist judiciary!
But the disturbing part of all of this is the calculation, the cleverness itself, more lawyer trickiness than sound judgment, which smacks of political opportunism from a man who was supposedly the paragon of judicial rectitude, prudence, and Federalist Society fidelity to the Founders’ legacy, for clearly, Roberts had to reimagine this monstrosity to find it constitutional. Why did he do this?
Several people have identified what I believe to be the main reason, probably best described by Michael Gerson in The Washington Post. Gerson writes that there are two types of judicial conservatism—institutionalism and constitutionalism—that can lead to very different outcomes, and he believes that Roberts is emerging as the great institutionalist, primarily concerned about the reputation of the Supreme Court and its place in American life. In this view, the Court should take great pains to defer to the legislative branch, lest it violate a duty to continuity and avoidance of partisanship, as with Bush vs Gore and Citizens United cases, for example.
The leading constitutionalists, of course, are Scalia, Thomas, and Alito, who are totally focused on rigorous application of the words in the document, whatever the political consequences or partisan appearances. Gerson himself is a self-described institutionalist, but he believes Roberts blew it in this decision because of lack of fidelity to any credible application of the law in this case. To me, this is the most disturbing aspect of this decision.
But there is more to this, and it involves a phenomenon that has been persistent at least since the New Deal, and that is the vulnerability of conservatives to intimidation from the left, of which there was an avalanche from all directions leading up to this decision, and I believe that the Chief Justice, in his role as protector of the institution of the Court, at least partially bent to this intimidation.
Why is it that conservatism is the wing of our political spectrum that is consistently vulnerable to this intimidation of the left wing? Why is it that the left’s “good intentions” are almost never questioned in terms of clearly documented bad consequences from the resulting policy? Why is it that conservatives consistently feel the need to accommodate the left, to be the conciliators, to be those most concerned with the civility of the body politic and, in the particular context of the Obamacare case, intimidated by the threat that the integrity of the Supreme Court would be damaged by a close decision against the President’s signature initiative by a conservative majority of the Court?
Is there any instance in recent memory in which the reverse was true, in which the left was in any way hesitant or subject to intimidation not to overturn a precedent or a democratically established policy, however adverse to constitutional scrutiny? I certainly can’t think of one. The reasons are many, but chief among them are because, in spite of the fact that this remains a center-right country, the left occupies the high ground in almost all elements of the popular culture, the news media, most of our non-profit institutions, and the upper reaches of higher education, to the extent that conservatives are considered duty-bound to answer for any objections to the “progressive” agenda in all of its manifestations, while the left is almost never held to any such corresponding duty by our mainstream institutions. And this situation won’t change until we change these civic and cultural institutions.
These are questions and considerations to ponder as we deliberate how we will respond to this decision in this election year; meanwhile, painfully, but no doubt appropriately, John Roberts has left us with our last resort—the ballot.