Tonight on the Obamacare Soapopera: Lonely Chief Justice Roberts makes peace with history

There are legal commentators far better equipped than I to discuss the Supreme Court's decision, so I will leave it to parse over its many facets. But I could not resist posting about Chief Justice Roberts's odd placement in this decision. This being the first time over a major case that he has ventured from the conservative wing of the Supreme Court, many are assuming that he has at least one eye on his historical legacy. I think this is correct, but perhaps a little more complicated than some are assuming. If Roberts is beginning to think about his legacy, then there are at least three things this decision does that might help define a new kind of conservative jurisprudence for the next half century.

1) The return of judicial restraint. Conservatives love to complain about "activist" judges and "legislating from the bench," but they don't really mean it. Most conservatives are happy to have judges invent economic rights (substantive due process, anyone?) and actively enforce them against legislative proscription. Roberts has, up until now, appeared squarely in this camp, preferring confrontation to restraint in most cases. But Roberts has worked hard here to use statutory interpretation to avoid coming into collision with Congress and the president. This is what judicial restraint really means, and Roberts's endorsement of it might be a harbinger of things to come.

2) Deploying a legal fiction. Roberts's departure in this decision is significant because he essentially says that the taxation clause, rather than the commerce clause, governs the individual mandate. Commentators right and left have complained that this is bad reasoning because it effectively gives Congress the same power it claimed it had before while muddying the waters in the process. Conservatives can point right to the president himself, who repeatedly called this provision a penalty, not a tax. Liberals complain that the test invented by Roberts (the "inaction" is not commerce test) is poorly suited to judge the current reach of federal power. Well, ok. But I rather like his fiction. I have always been uncomfortable with the notion that the federal government can compel you to participate in a particular kind of commerce. There are things that legislatures should not be able to do, and we do have to think about these limits from time to time. As Roberts pointed out, energy and transportation are both subjects of interstate commerce and we don't really want the government ordering us to buy a particular lightbulb or an automobile. Liberals have largely dismissed this argument, pointing out that the mandate was part of a comprehensive set of reforms and was special. In short, that Congress would not (could not) start ordering everybody to eat broccoli (or purchase cars, or whatever else). Liberals also repeatedly analogized the mandate with social security, and with other programs that rely largely on a redistribution of wealth through taxes. Roberts's opinion speaks to this. He deploys a legal fiction (the mandate, described as a penalty and denied as a tax, is actually a tax) in order to reserve the commerce clause. There are limits, he is reminding everyone, and we can be creative in enforcing them.

3) Connecting to the past. John Roberts loves John Marshall. John Roberts would like to be John Marshall. He is looking forward to a long tenure on the Court. He has an opportunity to lead the conservative wing in dominating jurisprudence for the next quarter century. And his legacy, he likely hopes, will live on past his chief justiceship. These were all traits of Marshall's, and so the parallels are striking. And there must be a reason that Roberts went back to McCulloch v. Maryland and Marbury v. Madison and the public writings of John Marshall on so many occasions. There are some ironies, however. Marshall famously used the power of the Court to curtail the police powers of the states and to bolster the federal government. His iconic opinion in McCulloch (1819) supported the power of Congress to incorporate a bank, something it was not granted in the original Constitution and which more than one Framer (including James Madison) believed was outside of Congress's power. (Full disclosure: President Madison signed the second Bank of the United States into law.) But perhaps the irony is intentional. The balance of power between the states and the federal government was different in the 1810s. The federal government was resisted far more frequently, and was much much smaller than it was before the end of World War II brought us a military-industrial complex and a Great Society. Marshall, one might say, fought for the underdog. Is this what Roberts is doing?

These are little more than the musings of someone who is trying to understand Roberts's positioning on the Court. But I must close with tears for poor John Roberts, whose opinion on the commerce clause leaves him in a 1-4-4 position, alone and lonely, naked to his enemies, etc. etc. But it is not his alienation from his compatriots that saddens me. It is, rather, his alienation from John Marshall. For a good portion of Marshall's chief justiceship, he was able to achieve consensus on the Court, to issue unanimous opinions and discourage even concurrences. Roberts clearly cannot. But then again, not even John Marshall could get this Court to put down its politics and behave like a judicial court.

Jeff Bell and the Conservative Society Myth

The Wall Street Journal interviewed Jeff Bell, a conservative thinker of sorts, on the subject of social issues and Rick Santorum's recent surge. The upshot of the article is Bell's notion that conservative social issues will send the GOP to victory in 2012 and help create a permanent Republican majority in politics. This runs against traditional wisdom, which regards such social issues as divisive and ultimately off-putting to swing voters. The title of Bell's forthcoming book, "The Case for Polarized Politics," reveals what he thinks of such an argument.

What I find immediately interesting about Bell's point of view is not so much his analysis of current politics (it seems transparently wrong about the tenor of conservative politics), but his attempt to justify his position as morally true. That is, he regards the socially conservative positions he espouses as objectively right. If the interview is to be believed, he believes that this truth is grounded in History (capital "H" History). As such, it is narrative that creates moral meaning, that in essence give norms their objective reality. (For anyone interested in a theoretical position endorsing this, see Robert M. Cover's article "Foreword: Nomos and Narrative," in the Harvard Law Review, volume 97 (1983-1984).)

So what is Bell's narrative? The roots of social conservatism lie in the Revolution. "Nature's God is the only authority cited in the Declaration of Independence," said Bell, and he then says that natural law is god-given, although conveniently non-denominational. "If you believe that rights are unalienable and that they come from God, the odds are you're a social conservative." This position then allows Bell one more intervention. The Tea Party has made a connection with the Founding one of its central tenets. (Economic and social conservatives unite!) In Bell's reading, "liberals" have (since the French Revolution) attempted to pull down the institutions of family and religion. Obama's presidency proves this. After all, he let gays into the military and took on the Catholic church over contraception.

I won't comment on the weakness of the narrative--it would be unfair given that it is not fleshed out. Suffice it to say that natural law had obvious Christian roots, but the beginnings of liberal theory (Grotius, Hobbes, Pufendorf, Locke, etc.) divorced natural law from the traditional hierarchical society that had once dominated political understandings of politics. Natural law became at first a theoretical and then later a political attack on hierarchy. This meant an attack on slavery, monarchy, and--wait for it--traditional marriage. Of course, "traditional marriage" at the time of the Revolution meant the absolute subjection of women to men--women who literally lost their legal identity to their husbands, surrendered their property, their wages, and their right to defend themselves in court from attack. Conservatives who opposed them complained that to grant women the right to their own property would undermine the "natural" foundation of society. Women thought otherwise. Some men did too, and marriage was reformed (a process taking generations),and  ultimately brought into line with the equality implicit in natural law thinking.

This historical interlude is, I repeat, not meant to comment on Bell's untenable historical narrative, but rather to illustrate the ways in which narrative can construct meaning. In Bell's narrative, he wishes to draw a line through time which connects today's social conservatives to the Founders. The line that connects them is respect for traditional institutions and a belief in God. These are absolute values, in Bell's reading. And the narrative gives them objective value. But the objective truth to which he clings is a chimera. And this, if he is not aware of it, ultimately dooms not so much his analysis of present politics as it does his own pretended morality.

Perhaps in a future post I will comment more about the substance of his narrative. At present it deserves no comment simply because it is so patently absurd. But perhaps after I have paused to read the comments on the WSJ post I will see whether a significant segment of the population actually takes this seriously.