I chose to listen to the immediate reaction to the Supreme Court’s ruling today on Fox “News” Channel. And, of course, I wasn’t disappointed. The spin began immediately, particularly the idea that this is really a win for Romney, who will find his base newly “energized,” just like in the 2010 election.
Well, that may be right, but what struck me about the right’s reaction to the ruling is just how far conservatism, as a philosophy, has strayed from its parenting.
If political conservatism has any legitimacy at all, that legitimacy is found in conservatism’s traditional respect for, and interest in maintaining, social stability. This implies a resistance to radicalism and opposition to those who would seek to disrupt an otherwise stable social order.
That traditional stance of conservatism is what originally attracted me to it, way back when I called myself one. And it is that centuries-old conservative posture that radicals and extremists like Justice Antonin Scalia and Clarence Thomas and Rush Limbaugh have undermined, if not completely eradicated. In short, what we see from the right these days would shock conservatism’s father, Edmund Burke.
I say all that to say that it turns out that the real conservative, among those on the Supreme Court who generally are called conservative, turns out to be John Roberts.
Justice Roberts joined the four “liberal” justices (more about that another day; judging by this decision, I see only two consistent “liberals” on this court, Ginsburg and Sotomayor) in the decision to uphold the constitutionality of the insurance mandate in the Affordable Care Act.
Granted, Roberts found the constitutionality of the mandate by essentially not interpreting it as a mandate at all, but as a tax levied on those who choose not to buy health insurance. And it is in that interpretation that Roberts actually exercised the restraint that conservatives are famous for advocating, but infamous for failing to honor when it goes against their political preferences.
Roberts wrote of the ACA:
We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.
That, my friends, is the stance of a conservative jurist, one who is willing to honor his principles even if it means offending his own politics, or his own party. Cited in the majority opinion today was Hooper v. California, which included this language:
…every reasonable construction must be resorted to, in order to save a statute from unconstitutionality…
Again, that is how a conservative should look at his job of interpreting a law passed by the people’s representatives, the Congress. That is the opposite of a Scalia, who pretends to adhere to some lofty principle of originalist interpretation, but who really is a radical who refuses to find any construction of a statute that would save it from unconstitutionality—if he doesn’t like the statute in question. And we knew he didn’t like it from the oral arguments, during which he absolutely embarrassed himself as a jurist.
It would have been remarkable, and a small step towards getting extremists like Rush Limbaugh to sober up a little bit, if Scalia—one of Limbaugh’s intellectual heroes—had railed against the law all he wanted, but found, as Roberts did, a legitimate constitutional hook—and the taxing power of the federal government is legitimate and constitutional—to hang the ACA on.
But, no, the heavy lifting was left to John Roberts, who in his conservative reading of the Constitution rejected (wrongly, in my view) the government’s first rationale for the mandate (the Commerce Clause) and its second rationale for the mandate (the Necessary and Proper Clause), but found merit in its third rationale for the mandate, the taxing power of the government.
In other words, Roberts gave deference to the Constitution itself, which prioritizes the will of the people as expressed through the people’s Congress, instead of his own policy inclinations and judgments.
If that kind of conservatism were the kind dominating the Republican Party today, this country would be a much better place to live, and would have a much greater hope of maintaining a stable—and ultimately just—social order.
Alas, as Fox “News” and Mitt Romney and the right-wing punditry make clear, as they drone on about this dark day, conservatism itself is in a very dark place.