You're a Good Man, Justice Roberts, and a Conservative

       Like many liberals, I have gained a new respect for Chief Justice John Roberts this week. In both Monday’s decision on the Arizona immigration law, and today’s Affordable Care Act decision, Robert’s broke with the Conservative wing of the court and sided with the liberals. Conservatives are not amused. Rush Limbaugh  and Mark Levin, of course, are going craz(ier). Half of the right-wing bloggers in the country want to impeach their former hero for disloyalty. And Glenn Beck is driving all over the country looking for an edge that he hasn’t already gone over. In general, white men in America haven’t been this upset since M*A*S*H* got cancelled.
       Strangely enough, my newfound respect for Justice Roberts comes from the long-suppressed conservative side of my split political personality. Unlike most of my liberal friends, I was genuinely ambivalent about the Constitutionality of the individual mandate. I supported (and continued to support) the idea of universal health care, but I was not convinced that the commerce clause could legitimately be extended to requiring a commercial transaction. And while I thought that the mandate was a very tax-like thing, I did not think that the government should be able to get away with calling it a tax only when it served their purposes. Like most commentators, I was fairly sure that the mandate was going to be struck down, and I was resolved to see the entire Affordable Care Act go along with it.
       And then John Roberts happened.
       I am still not sure that I agree with the core of Roberts’ decision today. The court basically ruled that if it waddles and quacks it’s a duck, and if it redistributes income to purchase services it’s a tax. I can see the point, but, on the other hand, Congress could have made this process a lot simpler if they had admitted that it was a tax to begin with and structured the legislation accordingly. However, once Roberts came to the conclusion that the mandate was essentially a tax, he could not have ruled other than he did without becoming an in-your-face judicial activist—as the Congressional power to tax is virtually unlimited by the Constitution.
       In his Federalist papers on the subject—especially #34-#36—Alexander Hamilton makes two things very clear: 1) that we cannot safely limit the power to collect taxes because we cannot accurately predict our need for revenue; and 2) that the political difficulties of raising taxes are sufficient to prevent excessive taxation, even with unlimited Constitutional authority. This second point has generally held true. People don’t like taxes, and when members of Congress forget this, they usually end up losing their jobs.
       It is precisely because tax increases are so politically difficult that the Framers felt that they could make them, Constitutionally speaking, slam dunks. This was actually pretty sneaky on their part. By granting Congress complete authority over taxation and spending, they made these issues completely political--questions to be confronted by the people who depend on the electorate for their jobs. Had they created a list of Constitutional and Unconstitutional avenues of taxation, they would have given a great deal of interpretive power to judges with lifetime appointments. As the Constitution stands, however, the courts are simply not part of the revenue-enhancing process.
        Roberts did a good job of bracketing all of the non-Constitutional questions involved with the Affordable Care Act. He did not ask “Is it a good idea?” or “Is it an effective policy?” He did not try to determine whether or not health care was a right. And while the four liberal Justices wanted to tie the mandate to the Commerce Clause, Roberts absoltuely refused to go there. He confined himself the very narrow question, “is the individual mandate a tax?”--a question with clear Constitutional implications. My favorite passage from the decision goes like this.

Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders. . . . Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

          In his landmark decision today, Chief Justice Roberts exercised formidable judicial restraint. He presented the Court's role with humility, and he framed the question at issue as narrowly as it could possibly be framed. He declined to legislate from the bench or to overturn the decisions of elected officials without a clear Constitutional mandate to do so. He tied his decision entirely to an interpretation of the Constitution that he had the authority to make. And (breaking with the liberal justices) he did nothing to expand the power of the federal government.
          Until about a week ago, we had a word for judges who thought this way. We called them “conservatives.”

On Rush and Rosen: Both Sides Have Crazy People, but One Side Listens to them More than the Other

By now, pretty much everybody knows what Hillary Rosen thinks about Ann Romney, what Ann Romney thinks about raising children, what Barak Obama thinks about Ann Romney raising children, and what Sarah Palin thinks about grizzly bears. Less clear in all of the hubbub is whether or not there is still a Republican War on Women and whether or not Democrats have now entered said war on the side of those who hate stay-at-home-moms. Meanwhile, Americans are pretending to be disgusted by all of the “cheap partisan dialogue” that is not cheap partisan dialogue at all, but rather expensive political theater of the sort that Americans really love. Need proof? Ann Romney now has more Twitter followers than Justin Bieber.
        Republicans, especially, seem to be enjoying putting Democrats on the defensive on women’s issues for once. It has only been five weeks—and a political lifetime—since the Republicans themselves were in the awkward position of trying to defend one of their media stars for calling a pro-contraception law student a “prostitute” and suggesting that she post sex videos to the Internet.
        In a world where major news items must be limited to 140 characters, distinctions tend to get lost in the shuffle. This has produced a sort of equality-of-outrage mentality that lumps the several recent media events into a tweetable equation: Rush/Newt/Rick/Mitt/Republicans hate women and think that law students are prostitutes, but HillaryRosen/HillaryClinton/ Obama/Democrats hate stay-at-home moms—so it’s all kind of equal and we can focus on who has the best hair. This is how we play the “equality game.”
        Let us assume for a moment, however, that there really is a rough equality between March’s fiasco and April’s—that calling women who don’t work outside the home “women who don’t work” is comparable to calling women who use contraception “prostitutes.” Let us also assume that Hillary Rosen’s position in the Democratic Party is roughly comparable to Rush Limbaugh’s position in the Republican Party (i.e. both are media commentators and neither is affiliated with any particular candidate or campaign). Even if all of these factors are equivalent, the responses of the actual candidates were miles apart, and this difference tells us something crucial about the current state of our two party system.
        When news of Rosen’s faux pas broke, the Obama team moved quickly and decisively to repudiate the comment. Campaign manager Jim “No Relation” Messina took to Twitter within minutes to say that Rosen’s comments “were wrong and family should be off limits. She should apologize.” David Axelrod, Obama Communications Director, followed up with “Also Disappointed in Hilary Rosen's comments about Ann Romney. They were inappropriate and offensive.” And within a day, Obama himself went on TV and rejected both the idea that stay-at-home moms don’t work and the practice of criticizing a candidate’s spouse. Rosen could not have been more repudiated.
        And what did Governor Romney say when asked to comment on Rush Limbaugh’s patently offensive statements about women who use contraception” Here it is: “I’ll just say this, which is, it’s not the language I would have used. I’m focusing on the issues I think are significant in the country today, and that’s why I’m here talking about jobs and Ohio.” In other words, “Rush will be Rush.” This is not a repudiation; it is barely even not an endorsement.
        Now, I am not naïve. I maintain no illusions that Romney is a woman-hating moral coward or that Obama is a courageous idealist willing to defend SAHMs at any cost. Both men gave carefully crafted statements that reflected their respective political realities. Obama had the luxury to take the moral high ground because the far left—the sorts of people who would agree with Hillary Rosen—are not a significant political force in his party or in the general election. Romney could not repudiate a clearly irresponsible statement because a large number of the voters he is currently courting agree with Limbaugh and would be outraged by an attack on their hero. This tells us that one side is clearly more beholden to, and less willing (or able) to police, its own wack jobs. And that is a big problem.
        As someone who usually hangs out near the political center, I find the Romney response terrifying--not because of what it says about Romney per se, but because of what it says about the political context in which any Republican candidate must now operate. Are there irresponsible people on both the left and the right? Yes, absolutely. Are there people with silly, stupid, insensitive ideas on both sides? Of course. But when a liberal pundit implied that stay-at-home moms don't work, the Democratic administration immediately condemned the remark in the strongest terms possible. In a very comparable situation, the presumptive Republican nominee bent over backwards to accommodate both the offense and the offender--not because he wanted to, I will gladly concede, but because he had to. And it is the reason that he had to that scares me the most.
       In in the current historical moment, one of the major political parties is demonstrably more dependent on its crazy people than the other one is, and this has definite implications for how they will and do govern.