Whatever decision the Supreme Court announces on Obamacare tomorrow, the various liberal missives of anticipatory anxiety in recent days have already revealed a great deal about the Left’s attitude toward our constitutional system. What we’ve learned can hardly come as news to conservatives, but it has been put forward in an unusually clear and undiluted form, and so is worth some thought. A few reflections below the fold (as this is a day that seems to call for long posts).
The basic message of these left-leaning diatribes is pretty simple: A majority of the Court could only disagree with liberals about whether requiring all Americans to buy health insurance is beyond the proper bounds of the Congress’s power to regulate commerce if that majority acted in a purely political or partisan way; there is no room for disagreement regarding the actual interpretation of the actual Constitution.
E.J. Dionne says that if the Court overturns any part of Obamacare, “we will need a fearless conversation about how a conservative majority of the court has become a cog in a larger right-wing project to make progressive political and legislative victories impossible.” James Fallows says that “the Roberts majority is barreling ahead without regard for the norms, and it is taking the court’s legitimacy with it.” Yale law professor Akhil Amar thinks the proper outcome is so obvious that if even four justices disagree with him then the Court must be a sham—and he takes it personally. “If they decide this by 5-4,” he told Ezra Klein, “then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.” Other examples abound this week.
It would be easy to criticize all this for its sheer unselfconscious lack of seriousness: These people are actually saying that any outcome except the one they want must be driven by an outcome-oriented political crusade. Only their view could result from an actual engagement with the question before the Court, and any other view could only be a function of corruption or of cynicism. It must be nice to be so enlightened.
More interesting, however, is what such an argument implies about one’s view of politics. Dionne, Fallows, Amar, and similar observers on the Left seek to draw a stark distinction between political and judicial thought, and it reveals their very low opinion of political ideas. They imply that there ought to be no connection between the most basic political divisions that define our public life—crudely encompassed in the Left/Right division—and ways of understanding the Constitution. This is a profound mistake, and a very telling one. As the Left often does, they underplay the substantive seriousness and significance of the Left/Right divide, presumably because they do not think of themselves as possessed of a particular worldview and believe they are merely objectively analyzing the obvious realities of the world around us. But there’s much more than they think to the Left/Right divide.