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John Roberts: Liberal Hero?

by ANDREW LEVINE

In America today, “liberal” and “conservative” describe positions that bear only a vague connection to the meanings of these terms in less benighted times.  The connection to philosophical understandings is even more attenuated.

This is a consequence of the accelerating decrepitude of our political culture.  This fact is relevant for understanding one of last month’s more remarkable developments: the adulation liberals accorded the previously despised John Roberts, Chief Justice of the United States, when he cast the deciding vote upholding most of the Obama administration’s most vaunted legislative achievement, the Affordable Care Act (Obamacare).

Two years ago, it was Roberts who engineered the outcome in the Citizens United case, making political corruption the law of the land, and turning over what “we, the people” have left of a democracy to the plutocrats who own our political class.  Roberts can take credit too for countless reactionary Supreme Court rulings.

But, on June 28, to the dismay of other right-wing Justices – and, of course, the Republican base and the pundits who shape their views — he saved Obamacare’s linchpin, the much vilified individual mandate, which requires persons not otherwise insured to buy health insurance or else to pay a fine.   For this “profile in courage,” all was forgiven.

Before the ruling came down, the idea that liberals would make a hero of John Roberts seemed about as likely as that Barack Obama or Eric Holder would heap praise on Bradley Manning or Julian Assange.  And, indeed, as Roberts’ position is scrutinized, doubts about his bona fides are reemerging.  But he was a liberal hero at least for a while.  That unlikely fact tells a lot about liberals, and about the state of our political culture.

* * *

In retrospect, the liberal response to Roberts’ ruling makes sense, at least at a psychological level.   Having been put down for so long by an administration bent on courting the plutocrats Roberts lives to serve and determined to win the hearts and minds of “moderates,” liberals are understandably easy to please.

Obama proved that point when, with a few kind words (only words!) on same-sex marriage, he got the handful of “forward leaners” in the corporate media to wax ecstatic again.  And though no American president ever has been worse on immigration issues, an executive order halting the deportation of undocumented immigrants younger than thirty and brought to the United States as children seems to have assured Team Obama that, this time around, they can count on Hispanic voters again too.

No matter that Obama’s less than generous motives are transparent: in a Citizens United world, he needs all the gay donors he can bring on board and he needs to keep the constituencies that backed him in 2008 in the fold.  Liberals either don’t want to know about this or don’t care; they’re happy just to accept anything Obama throws their way.

Ever in dread of the greater evil, they have learned to ask for nothing and to be grateful when that’s what they get.  The Democratic Party has been counting on this for years and, with Obama at the helm, they are not about to change their ways.

And so we live under a duopoly party system where both parties compete to serve the interests of those we have come to call “the one percent.”   The difference is just that one of those parties, the scarier one, is more transparent about its allegiances than the other.  No wonder that, in such a world, the political compass has gone haywire and words like “liberal” and “conservative” have become unhinged.

No wonder too that it was self-identified liberals, not conservatives, who made a hero of John Roberts.

But, in making a hero of Roberts, liberals were not just grasping at straws; they were also revealing where their deepest sympathies lie.  It wasn’t always so but those who identify with liberalism today have become the true conservatives.  Self-identified conservatives, meanwhile, are just plain reactionaries – except sporadically and for reasons that are not always on the up and up.  Witness John Roberts.

* * *

To make sense of all this, it is not necessary to dwell on what “liberalism” used to mean or what it means in philosophical circles.

For political philosophers, what liberalism is and what it implies for justice and equality has been Topic A for decades.  But this work, valuable as it is, is largely dissociated from the real world of politics.  It is nearly irrelevant for explaining how self-identified liberals think.

However it is relevant to bear in mind the last great liberal settlement in American political history, the one that began with the New Deal and continued through the time when the Vietnam War effectively undid the Great Society.  New Deal-Great Society liberalism aimed to ameliorate conditions of life under capitalism.  Though pale in comparison, it was of a piece with similar ameliorative programs developed in Europe and elsewhere under the aegis of social democratic ideologies.

We have not yet reached the point where self-identified liberals expressly advocate undoing that last great liberal settlement; that is what self-identified conservatives do.  But “by their deeds shall ye know them.”  Democratic presidents, their party in tow, have done at least as much as Republican presidents to restore pre-New Deal conditions.  Awful as Mitt Romney promises to be, if history is a guide, it is far from obvious that Barack Obama, with the election behind him, won’t be worse.

In a world where liberals and conservatives are both engaged in the same nefarious project – in the one case, without quite saying so; in the other, with greater honesty — identifying the connection, if any, between actually existing liberalism and the genuine article is complicated at best.  But, for our purpose, there is no need.  Obamacare hardly rises to the level of a New Deal or Great Society program and, that feeble connection apart, there is nothing particularly liberal about it.  Roberts’ unexpected defense of Obamacare has even less to do with anything distinctively liberal.

* * *

But it does have a lot to do with venerable understandings of what conservatism is.  One strain of conservative thought is especially relevant for making sense of it and also, more importantly, the reaction to it.

Nothing illustrates the idea better than the Common Law doctrine of stare decisis, precedent rules.  This is ironic inasmuch as it was a legal judgment, advanced in the Common Law tradition, which turned Roberts into a hero for liberals.

The rationale for deciding legal cases according to this doctrine begins with the assumption that the issues courts decide are relevantly like those they decided in the past.  Those decisions, the argument goes, were good enough in most instances.  At the very least, they got us where we are.  In the conservative view, that is not a bad place to be.

If we set our minds to improving on past judgments without regard to past decisions, we might do better.  But this is unlikely, and it can also be unsettling.  The rule of law works best when there are stable expectations about what the law requires.  Stare decisis enhances the likelihood that this will be the case.

Of course, if there are overwhelming considerations of justice that were not taken into account in past rulings, then, the argument goes, precedents should be overridden.  But inasmuch as this is usually not the case, precedents should, for the most part, determine  outcomes.

This is the accepted view throughout American jurisprudence, honored both in the breach and the observance.  Even when the doctrine is not followed, when “activist judges” make laws, they almost always attempt at least to maintain the fiction that they are following the guidance of the past.

Similarly, in the larger political arena, the guiding idea is that if we follow the lead of the past, we will generally end up no worse off than we now are, and that the result will therefore be at least satisfactory.  On the other hand, if we break from the past in an effort to make things better, we will likely end up worse off, perhaps disastrously so.

Thus conservatives think that in politics it is always wise to be risk averse.  This is why, in their view, traditions of governance trump attempts at fundamental change, and why continuity in institutional arrangements and on-going practices is of paramount importance.

Of course, even dedicated conservatives concede there are activities for which cautious gradualism is inappropriate because they necessarily involve the exercise of untrammeled Reason; this is the case in most fields of mathematics, for example, and in some areas of philosophy.  In these and similar domains, it would be foolish to accord priority to received ways of doing things.

But these are the exception, not the rule – because most of life is more like, say, cooking than geometry.   The cook relies on instruments, techniques and recipes that embody a collective wisdom accumulated over generations by people facing roughly similar problems to those cooks now confront.  There is no need to resort to first principles, not because our cooking is as good as can be, but because it is good enough and because far-reaching changes risk going drastically wrong.  There is also no one best way to cook, but many traditions, each continuous with a useable past.

Governance, conservatives think, is, like cooking.  A conservative can be agnostic on whether the problem lies with the nature of Reason itself.  No doubt, many think it does.  But even if it does not, the crucial point is that human beings’ rational capacities are not up to the task; for doing politics the way we do geometry, we are, so to speak, insufficient.

The idea behind this conviction all but defines a much older strain of conservative philosophy.  In the seventeenth century, Thomas Hobbes, the greatest political philosopher the English-speaking world has produced, argued that, given human nature and the human condition, life would degenerate into a devastating “war of all against all”  unless individuals are made unfree to do everything they want to do.

Hobbes argued that, to achieve this end, it is necessary that there be coercive institutions capable of compelling individuals to follow the dictates of political authorities.  He argued, in other words, that what individuals cannot achieve voluntarily, given their nature and condition, they can achieve politically — through the use or threat of force.

Hobbes also argued that the only sustainable form of political authority is sovereignty – supreme and, in his view, unlimited authority.  Thus he deemed sovereignty necessary for order, the paramount value in his vision of a good society.  That vision is idiosyncratic and extreme, and Hobbes’ arguments are compelling only within the framework of his other philosophical views.  But the preeminence he accorded to order is typical of this strain of conservative thought.

Hobbes’ position was secular, but his notion of human insufficiency is of a piece with the distinctively Christian doctrine of Original Sin, the Church Fathers’ alternative to pagan (mainly Greek but also Roman) notions of human perfectibility, according to which, as Aristotle famously put it, we are essentially “political animals,” beings who must participate in the political communities we comprise in order fully to become all that we (potentially) are.

In the Christian ancestor of Hobbes’ position, political institutions are punishments for Original Sin because they block the free expression of our Fallen nature.  Ironically, in doing so, they also provide relief from its consequences, allowing Providence to work its way through human affairs.  Thus it is not our interests that order serves, but God’s.  Still,  the point remains: by imposing a non-natural order upon us, political institutions save us from ourselves and from each other.

Unlike the kind of conservatism that makes governance out to be an activity more like cooking than geometry, this strain of conservative thought does not directly resonate in John Roberts’ apparent defection from the self-identified conservative cause.  But it does underscore a point that is often lost in our political culture: that the anti-statist character of our actually existing conservatism is quite atypical.  Conservatism is not inherently anti-statist, as American conservatives assume.  As Hobbes’ example shows, precisely the opposite is usually the case.

* * *

As Obamacare slouched towards passage in Congress, it seemed a case of  “bipartisanship” gone awry.  Not wishing to rattle the cages of private insurers and healthcare profiteers, Democrats enacted a policy not much different from the one conceived in the early 1990s at the right-wing Heritage Foundation as an alternative to the Clintons’ efforts at health care reform.

Obamacare, accordingly, is very like the program Republicans promoted until quite recently and that Mitt Romney got enacted in Massachusetts when he was governor there. It was not until Obama took up the cause that Republicans turned on the policy they concocted and fostered.

Assuming it is not reversed in Congress, it remains to be seen how much good Obamacare will do when it finally goes fully into effect.  On the plus side, it will lead to more (but not all!) presently uninsured persons gaining coverage, and it puts a number of worthwhile insurance reforms in place.   On the other hand, it further entrenches the power and wealth of private insurance companies and health care profiteers.

It will likely also set back the cause of genuine reform, perhaps for another generation, in much the way that the Clintons did.  It may also leave many presently insured persons, union workers especially, worse off, as employers seize the opportunity to cut back or eliminate employment related insurance.  And it is becoming clear that its funding mechanisms may give rise to additional problems as well.

Even so, it seemed, when the Affordable Care Act passed, that the United States would indeed move forward a tad – not to the level other developed countries long ago achieved, but in that general direction.

Then an “only in America” thing happened.  The affair turned into a legal squabble.

The proposed rationale for ruling the Affordable Care Act unconstitutional was that, contrary to what Republican had been saying for years, Congress had no right to require otherwise uninsured persons to buy health insurance or pay a fine if they don’t.  It plainly did have that right, however, under the commerce clause of the U.S. Constitution.

If precedents matter, the issue was about as settled as any Constitutional question could be.  Moreover, the state Attorneys General who brought the suit and their allies on the Supreme Court were not about to take on commerce clause jurisprudence altogether; that would be too unsettling – and too patently “unconstitutional” — even for them.

So, not very ingeniously, they split a hair, arguing that while Congress can regulate activities that have commercial impact beyond the borders of individual states, it cannot proscribe inactivity that affects inter-state commerce.  In other words, Congress can say what health insurers can and must do, but it cannot require anyone to buy health insurance.

Antonin Scalia, supposedly the smart one, was especially concerned that if this distinction isn’t given legal standing, Congress could require individuals to buy broccoli. At least he had the decency not to take his usual tack: asking what the Constitution’s authors would do.

* * *

We Americans are so used to this level of silliness that few would find it odd if he had.

Indeed, it is one of the oddities of our political culture that we accord an almost scriptural authority to a text composed in the 1780s by leading planters (slave owners), merchants and lawyers.

But that is precisely what we do, and no one does it more than the reactionaries we call  “conservatives.”   This residue of America’s Protestant past survives in our jurisprudence and also, to a remarkable extent, in the broader political culture.  To buy into it, it is hardly necessary to be culturally, much less religiously, Protestant.  Scalia, a right-wing Catholic, is a case in point.

The idea that there is Holy Writ and that it ought to be authoritative took hold on American soil to such an extent that, even as faith waned, it survived outside the theological framework that gave it life.  Our founders established secular institutions that implement Enlightenment ideals including the separation of Church and State.  Nevertheless, we fetishize the Constitution they wrote, much as the Protestant faithful of old, and evangelicals today, fetishize the Old and New Testaments.

Constitution fetishism can be benign and even beneficial.  But because it channels public deliberation into a forensic realm where questions hinge, in part, on the interpretation of words written long ago, it affects how arguments are made, driving a wedge between the positions people hold and the reasons they hold them.  One consequence is that citizens or their representatives are often obliged to argue disingenuously, appealing to reasons they don’t embrace to defend positions they do.

Arguably, there is no harm in this when the governing jurisprudential practice acknowledges the evolving character of Constitutional interpretation.  Then, at least in theory, our style of jurisprudence would constrain how arguments are made, but not materially affect their substance.  On the other hand, there can be considerable harm if “originalist” styles of interpretation prevail.  Then the content, not just the form, of public argument is affected – in almost all cases for the worse.

Needless to say, it is not clear how the intentions of long dead Constitution writers can be ascertained.  But the pretense can be useful for turning back progress because originalism ties judges to the prejudices of earlier times.  Its proponents praise it as an antidote to “judicial activism.”  In fact, the opposite it is true; it is a rationale for enlisting the judiciary in the service of the most retrograde forces in our society.

* * *

That used to be what John Roberts was about and maybe it still is.  But then the so-called conservative Justice had a genuine conservative moment.

Only in retrospect and as more information emerges will what happened become clear.   Perhaps he honestly thought the situation through and this is where his thinking led.    More likely, he sided with the “liberals” for reasons that are more strategic than principled.  There are times, after all, when it is well to take one step back, the better to move forward – that is, to move the country backward — later.

There are liberals who touted his heroism who are coming around to this view.   They are starting to worry that when issues bearing on affirmative action and voting rights come before the Court next year, he’ll be better positioned to promote reaction than he would have been had not decided to keep the Affordable Care Act in place.

They are worried too that his hair splitting on the commerce clause will have bad consequences in the years to come.  Some are realizing as well that the “conservative” Justices, Roberts included, who ruled that states cannot be threatened with the loss of all Medicare money if they fail to go along with the Affordable Care Act’s efforts to extend Medicare coverage will make it harder from now on to implement federal regulations and rules at the state level.

In short, whether Roberts was a liberal hero, even if only on June 28, or rather an exceptionally clever snake in the grass remains to be seen.  Were this just a question about him, it would be of little interest.  But since he heads what is, in effect, a super-legislature with vast powers, it is a question of the utmost importance.  No doubt, in time, the answer will become clear.

But it is not too soon to see what their reaction to Roberts’ (temporary?) defection from the “conservative” juggernaut says about liberals.  It shows that if they are not the last true conservatives in our political culture today, they are the closest approximation we’ve got.

Of course, this may just be a defensive posture on their part; an understandable one too in a world where the reactionaries who have appropriated the conservative label are still on the offensive.  But it is hard to deny that in this Age of Obama the causes liberals enthuse about – same-sex marriage is another example – have a profoundly conservative cast.

For helping to bring about this state of affairs – and for stifling the impulse to seek out anything better, more experimental and bold — the Democratic Party of the Clinton and post-Clinton years has much to answer for.   Will Obama’s legacy be even worse?

ANDREW LEVINE is a Senior Scholar at the Institute for Policy Studies, the author most recently of THE AMERICAN IDEOLOGY (Routledge) and POLITICAL KEY WORDS (Blackwell) as well as of many other books and articles in political philosophy. His most recent book is In Bad Faith: What’s Wrong With the Opium of the People. He was a Professor (philosophy) at the University of Wisconsin-Madison and a Research Professor (philosophy) at the University of Maryland-College Park.  He is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press).

 

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ANDREW LEVINE is the author most recently of THE AMERICAN IDEOLOGY (Routledge) and POLITICAL KEY WORDS (Blackwell) as well as of many other books and articles in political philosophy. His most recent book is In Bad Faith: What’s Wrong With the Opium of the People. He was a Professor (philosophy) at the University of Wisconsin-Madison and a Research Professor (philosophy) at the University of Maryland-College Park.  He is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press).

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