[Re-posted from earlier today.]
Mulling over the Supreme Court ruling in favor of Obamacare this weekend, it occurred to me why this remains a BFD. It's not that we now have a reprieve for the idea of universal healthcare in the US. Or even that we have an interpretation of the Commerce Clause that could eventually mean some non-trivial ratcheting back of the federal government's powers vis-a-vis the states. It is that a creature of the conservative movement, one of its youngest and most intelligent stars, saw the radicalism of the four dissenters … and balked.
He balked, it appears, because of his attachment to the court as an institution, because he was unwilling to trash its reputation by embroiling it in a deep and bitter partisan grudge-match in the middle of a presidential campaign – when there was a plausible way out. He was also applying the logic of judicial restraint with respect to legislative wishes, interpreting the law to be as constitutional as it could possibly be deemed (i.e.in this case, viewing the mandate as part of the Congress's tax power). In these two ways, Roberts upheld a form of conservatism that is not synonymous with the interests of the Republican party at any given moment. Which is so unusual these days one wants (pathetically) to stand up and cheer.
One of the most strikingly anti-conservative aspects of today's allegedly conservative movement, after all, is its contempt for institutions, especially elite institutions that in any way limit the scope of fundamentalist ideology. And so Newt Gingrich's crucial innovation was throwing out the politeness and manners and decorum and rules and traditions of the House of Representatives in order to gain power by populist demagoguery. You can see his legacy in Tom DeLay's implementation of the Medicare D entitlement under Bush, an essentially lawless and rule-free process that made a mockery of parliamentary procedure. You saw this contempt for the rule of law, if it got in the way of desired policy, in the torture policy under Bush, cynically making the patently illegal "legal" through cynicism and double-speak.
Similarly, McConnell's use of the filibuster is essentially a display of contempt for the American constitutional system, rigging the system to nullify legislative majorities and to conduct politics as a zero-sum war for power, rather than as a means to debate, discuss and implement necessary changes in an evolving society. The give-and-take of American constitutionalism has been essentially reduced by the GOP in the last two decades to take-and-take-some-more. They impeached one successful president, in an act so disproportionate to the offense (and the offense was real; Clinton was a shameless perjurer) that it helped gut any bipartisan functioning of an institution designed for deal-making across the aisles or within them. They treated the 2000 election, when Bush lost the popular vote, as a landslide mandate election – again with no deference to the other side or sense of governing as one nation.
After Bush vs Gore and then Citizens United, I think Roberts saw the full political and constitutional consequences of a radical Court vote to gut the key legislative achievement of a duly elected president and Congress. In other words, he put the institutions of American government before the demands of partisan power-mongering. And he deftly nudged the issue back into the democratic process, where it more comfortably belongs.
I cannot say this is the moment the fever broke. The "movement right" is still furious at Roberts, pushing Romney as the principle-free instrument of their next round of institution-smashing (Medicare). But that a conservative placed the country's institutional stability before ideological fervor is so rare at this point it deserves some kind of praise. It's a start. If the GOP is beaten this fall, it may even be seen as the moment the tide began to turn, and conservatism began to reach back toward its less feral traditions and ideas. But I know I'm getting way ahead of myself here.
But at some point, conservatism must re-emerge, if only because we so desperately need it. Conservatism is, after all, a philosophy that tends to argue that less equals more, that restraint is sometimes more powerful than action, that delay is often wiser than headlong revolution. It reveres traditional rules and existing institutions, especially endangered elite institutions that the Founders designed to check and cool the popular will. Roberts took a small step toward resuscitating that tradition last week.
It's the first seagull spotted after a decade or two on the open seas.
(Photo: John Roberts at the age of 29, associate counsel at Fielding and Co, by Harry Naltchayan/The Washington Post via Getty Images. And Edmund Burke.)