Originally published in Official Artur Davis
Whether Chief Justice John Roberts changed his mind, or is the latest example of Republican justices “evolving” on the bench, he has done the improbable: liberals are praising a Supreme Court that they had trashed as a player in a right-wing conspiracy. Old sins like Citizen United are washed away, as are President Obama’s spring musings about the dangers of an unelected court unaccountable to public opinion. The about-face is jarring even in a political atmosphere where the right result typically makes right.
I’ll offer two quick cautionary notes, though, on the politics,and on the arguably more significant trend signified by the outcome. First, a rebuttal to Democratic wishfulness that healthcare is now a politica lwinner for Barack Obama: the better evidence is that it will be a media inflated victory that is worth no votes. Just as Democrats miscalculated in 2010 by assuming that the passage of the healthcare law would prove that they could get things done, they are probably drawing th ewrong lesson today if they assume the Court’s rescue of a deeply unpopular law somehow validates the Obama term.
The notion that the Supreme Court’s imprimatur alters the electoral equation implies that the hostility to Obamacare among Independents and swing voters is related to their doubts about the law’s legitimacy. To the contrary, there is considerably more polling evidence that the political middle’s resistance to the Affordable Care Act is grounded in bread and butter realities: sticker shot at the cost; reflexive doubts that any fledgling federal bureaucracy will work the way it is supposed to; and a suspicion that for all the hoopla, the reform won’t lower their premiums or improve their coverage. The constitutional gripe never really permeated the congressiona ldebate, and it has become a rallying point only within the GOP’s Tea Party base and on the intellectual right: two places that are not exactly part of the persuadable voter universe, and two sectors that aren’t about to rethink thei ropinion based on a one vote escape act.
From the Romney campaign’s 2 million dollar online fundraising haul in the 12 hours after the opinion, to the usual eventuality that a judicial setback only galvanizes the political losers, there are all manner of reasons to think that a campaign looking for a conservative cause now has one. But in fairness, that cause should be something deeper than the vagaries of the healthcare overhaul. The larger threat–and the most important victory won today– lies in the left’s continuing capacity to achieve political outcomes out of all proportion to their public appeal.
Just as the left has caricatured opposition to same-sex marriage and abortion as retrograde and extreme, it has pulled off the same feat in the context of Obamacare: the case was made, and Roberts bought it, that a Court that has struck down 170 congressional statutes (including another in the next to last case announced today) would somehow be dangerously activist if it added a171st to the mix. It’s a trick that has played out all year: shaping elite opinion by marginalizing positions that roughly half the country holds.
At its core, it is brutally effective politics: a president in a tight race reversed his long-standing opposition to same sex marriage in a country where 36 states ban the practice and in a party whose all-important ethnic base is extremely skeptical of redefining marriage. A universally respected breast cancer charity was beaten up badly over its choice to defund one of the nation’s leading abortion providers and was forced into a mea culpa, at the same time the pro-life constituency is at its highest level in Gallup polling in a generation and outnumbers the pro-choice camp.
It is not news that most liberals regard the courts as a bulwark against public opinion, and that they celebrate the judiciary’s capacity to detach itself from the mainstream. What is more striking is the evolving liberal ideal that the overall political process need not and should not mimic popular sentiment either. Why bother, when reputation sensitive elites can be persuaded without relying on a ballot, simply by invoking their desire to align with “history” and their skittishness about following the “uninformed”?This is a crafty, albeit undemocratic, disingenuous sleight of hand that the left is practicing, but it is winning victories (and for the moment, may have captured John Roberts). Victories, mind you, with a cost: a further widening of the gap between Middle America and the elite, and a little bit more distrust poured into our politics.
A version of this article also appeared in National Review on June 28, 2012