The Surpreme Court decision on universal health care was a frightening near thing. Four justices voted to find the entire Affordable Care Act unconstitutional and appear to be preparing a judicial assault against the New Deal. Chief Justice Roberts decision stepped us back from the brink of a Supreme Court legitimacy crisis, a change made perhaps at the last minute, although still a decision that will complicate future efforts to improve national programs that are implemented through the states.
The battle now proceeds to the election. This will be a hard one, thanks to difficult worldwide conditions and successful obstructionism by Republicans in Congress since the beginning of the crisis, economic recovery is slow in coming. As Dan Drezner notes, the U.S. is performing above par internationally, but the average American voter doesn't grade on a curve. I have no special insight into how to win that election so instead I"ll look at the topic of how did we win this round?
To answer that question, I turn to Will Wilkerson, a libertarian with liberal sympathies, who seems scornful of the win in a way that strikes me as informative:
Mr Roberts observed the livid reaction to Citizens United, as well as the liberal freak-out over the mere possibility of a ruling striking down Obamacare, and determined that prudent custodianship of the court called for a light, conciliatory touch. Indeed, my hunch (and none shall doubt my amazing intuition!) is that Mr Roberts may well have chosen to join his conservative colleagues had the court not lost so much public goodwill following the Citizens United decision…
Thus, all that was required to avert a looming "crisis of legitimacy" was to uphold Obamacare, for whatever reason, and Mr Roberts seemed to have known it. Mr Chait and his partisan allies clearly dislike the way in which Mr Roberts avoided the "crisis" of their collective tantrum, but the great relief that has now washed over them will be enough to keep them from attacking with full force the "bizarre and implausibly narrow reading" of the commerce clause which Mr Roberts just embedded more firmly in constitutional law.
This is a tradeoff I will gladly take. Achieving universal healthcare is no mere battle in building a more humane, it is the war. As Kevin Drum argues, the distinction between activity and inactivity never came up before and is unlikely to come up again. The practical result is that we will have to call things taxes in the future, scary I know, but the present Democratic party aversion to ever using taxes is on any but the top 1% was already unsustainable. We may yet lose the election, but Roberts had the votes to end it here and now via what James Fallows called a slow motion coup and he choose not to. We are a better country for that and we are a better country because liberal politicians and pundits were taking Michael Tomasky's fine advice and preparing to come out swinging. As Wilkerson notes, this wasn't a one off preparation either, the vehement reaction against Citizens United may not be enough to overcome the effect of big money donors but it did better prepare us for this fight.
In some ways, this recalls the bully pulpit strategy of presidential leadership: appeal to the public to move popular opinion and pressure members of the legislature. Political science has not found support for that idea. However, in part because supporters are defending an existing law rather than trying to institute change via the court, vehement arguments seem to have helped win the day. I'll keep an eye out for any further research on this matter, as I expect the minority mentioned above will be back for future attempts to roll back the welfare state.
Usual caveat: Speaking for myself, not my employer.
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