[Cross-posted to In Medias Res]
So, it’s been more than a week since the Supreme Court, against my expectations, upheld the Affordable Care Act by issuing a 5-4 decision in NFIB v. Sebelius. A couple of commenters, both before I left town for the week in which the decision ended up being handed down, as well as in the immediate wake of the ruling, wanted to know if I’d changed my mind: if I didn’t feel a need to rethink what I said about the imperialism of our highest court, and the way it contributed to, in my mind, our present moment, a moment in which “all the institutionalized practices and routines of democratic government seem dubious or even irrelevant to the supposed ability of the people to organize themselves and take responsibility away from those whose wealth, position, or power allow them to easily grab it in the first place.” Obviously, my prediction was completely wrong: the individual insurance mandate (which has now, through the magical power of clever legal writing, received constitutional blessing as a tax) passed muster, while the Medicaid expansion didn’t. But the fact that I’m happy with the decision hardly puts an end to my worries; if anything, the news about the conflicted, impervious way in which Chief Justice John Roberts sailed solo through the whole decision-writing process, taking first one way and then the next, I think can be taken as evidence for my point.
What makes this especially galling–to me, anyway–is that more than a few prominent conservatives have discerned in Roberts’s decision some sort of profound, John-Marhsall-esque defense of judicial restraint and democratic empowerment. George F. Will wrote that Roberts, by rebaptizing the Affordable Care Act as something other than what it’s defenders presented it as, helped to revivify the salutary tradition of “viewing congressional actions with a skeptical constitutional squint.” Ross Douthat praised Roberts for “basically allowed the existing debate to continue, and…[not] declaring either side’s fundamental convictions out of constitutional bounds.” Andrew Sullivan called Roberts another Edmund Burke for being “unwilling to trash its reputation by embroiling it in a deep and bitter partisan grudge-match in the middle of a presidential campaign.” Fine, wonderful–Roberts is a careful guy, and no doubt had any number of legal and political, as well as institutional and perhaps even strategic concerns in mind as he developed his opinion about the ACA. (Scott Lemieux thoughtfully and succinctly lays out these factors, partly in response to Mark Tushnet’s three-part analysis of Roberts’s opinion.) But from where I sit, I wonder what that is supposed to add up to. An unelected individual has taken it upon himself to craft a decision in the midst of many countervailing pressures that prevented the (I think, given the obvious precedent in support of the commerce-clause reading of the individual mandate, rather arbitrary) constitutional squashing of a law that had been passed through regular democratic procedures, in the face of the coordinated opposition of a political party and ideological movement that increasing acts, for better or worse, according to rules and norms quite different (some of them downright “goofy”, as no less a conservative than Richard Posner has labeled them) than anything that our constitutional republic had previously adapted itself to over the years. This is supposed to make us happy? No, this is an exception which proves a rule; this is a lucky success which reveals how deep the democratic dysfunction and failure.
I have sitting on my desk a copy of Sanford Levinson’s new book Framed: America’s 51 Constitutions and the Crisis of Governance, in which he looks at both our federal and the state constitutions, and points out confusions, inconsistencies, and hold-overs from lost political eras which prevent our communities–local, state, as well as national–from being able to effectively govern themselves. He is much more friendly to the idea of judicial review than I am (I still consider Jeremy Waldron’s criticisms of it as a constitutional doctrine, and his recommendations of limitations to be put upon it, to be essentially unchallenged), but even he recognizes that the degree of anti-majoritarianism which the court is set up to exercise–especially, I would add, when one throws into the mix the polarization of party-organized political and ideological positions which we are presently seeing in the United States–may well be indefensibly undemocratic. He points, as contrasting examples, to the state supreme courts of North Dakota and Nebraska, which cannot declare legislation to be unconstitutional with supermajorities of the courts agreeing to do so (four out of five in the case of North Dakota, five our of seven in the case of Nebraska); he also reflects upon a long-gone Progressive effort in Ohio to prevent the courts from exercising judicial review over legitimate democratic legislation except in cases of a unanimous vote (Framed [Oxford, 2012], 284-285). I don’t put those suggestions out there as solutions to the frustrating reality that we–those of us who supported, despite all our reservations, the Affordable Care Act–are being asked to be grateful that an appointed judge has taken it upon himself to not drop a two-ton constitutional hammer on years of combative legislative struggle, but they do, at least, help me recognize that I’m not alone in feeling somewhat churlish when I’m expected to celebrate the outcome.
In a peaceful, wealthy, modern democratic society like our own, there is probably no more obvious question which pertains to the common good of the whole community than how one allocates (and pays for) the provision of health care. (Michael Walzer made this point nearly 30 years ago.) I don’t think a system that makes the national government a partner with corporate entities like insurance companies is the best way to go about doing this (and most Americans agree). But as the political parties we had available to us weren’t going to get behind single-payer (and perhaps appropriately so, due to the size and diversity of our population–though Canada, as always, provides an instructive counter-example), a complicated system of mandates, exchanges, limits, and subsidies seemed, ultimately, the only workable way to propose a solution to the demands of the American people that health care costs be controlled and no one be allowed to die outside of emergency rooms for lack of insurance coverage. It is admittedly rather easy for critics of democracy to mock these kinds of demands as unrealistic or uninformed; there’s plenty of evidence that most Americans not only know next to nothing about the Affordable Care Act, but they know next to nothing about the whole legal argument over it. In the midst of such an uneducated populace, surely we ought to trust in various elites to make decisions for the masses, yes? I for one don’t think so–for reasons that Walzer laid out decades ago: that so long as no serious “political decision” (meaning democratic legislation) is made to limit the dominant role of free enterprise in our intellectual constructions and justifications of our systems of medical care–even though “communal provision already encroaches upon the free market” (think Veterans Administration hospitals, think Medicare–then it will remain the case that “individuals will be cared for in proportion to their ability to pay and not to their need for care” (Spheres of Justice [Basic Books, 1983], 88-89). Democracy and the legislation it results may not appear efficient or natural or rational by market/property/rights/stuff-shaped standards (said standards being historically arbitrary and often incoherent anyway), but it really is one of the indispensable tools for maintaining a community that holds to some basic principle of equality. I’ll happily grant that the communitarian and majoritarian concomitants of the construction of genuine democratic self-government are often illiberal and invasive in their own un-equalizaing ways, and hence courts outside the system of direct democratic accountability have their place…but the idea that we are expected to appreciatively applaud when unknowable circumstances lead a random judge to actually (munificently!) allow democratic efforts to structure the communal provision of medicare care to go forward? No thank you.
In my previous post, I made mention of James Fallows’s belief the Supreme Court’s impending decision on the Affordable Care Act had marked similarities to what, were it happening in other, less developed countries, we’d probably characterize as a “coup.” A friend of mine pointed me towards Will Wilkinson’s mockery of that point, suggesting along with him that my complaints were basically that I had policy disagreements with the government (or the Supreme Court), rather than frustrations over “the slow-motion demise of American democracy.” All I can say about that, now that the ACA has survived (until November and Romney’s election and the possible Republican take-over of the Senate, at least), is that the issue for me was never (or at least never entirely) disagreements about the reasoning and arguments used in the defenses or attacks before the Supreme Court over how one ought to be allowed to write laws provide for affordable medical care to the American people…it is was always primarily that this–the very legitimacy of what the Obama administration managed to push through Congress in early 2010–was made into a juridical (that is, an elite, a constitutional, an “expert”) issue in the first place. Good for you, John Roberts: you found a way to allow us to continue (on this issue anyway, maybe) to govern ourselves. Forgive me for not cheering to loudly. After all, we have enough problems already with a corrupt party system, a dysfunctional Senate, and a political culture mostly blind to the structuring power of money in the election process. All you really did was provide the last word (just for now, of course) in a process that distracted us from all that for months. Hurrah.