When the returns came in from Indiana, so many questions came to mind. How did we get to the point where a reality-TV mogul became the standard-bearer of the party of Abraham Lincoln? Did Barack Obama succeed in transforming an exceptional nation into a “normal” one, such that we finally got the Berlusconi we deserve? Or maybe it’s the Republican Party that’s to blame, reaping the whirlwind of its appeals to populism such that even Ted Cruz got sucked into the anti-establishment maw?
Or, worse, has our presidential system finally revealed its flaws such that we’re stuck with Latin America-style politics that feature crude demagogues and the wives of former presidents, all of no discernible ideology save the will to power?
As I drowned these existential sorrows in Johnny Walker and “Archer” reruns, it occurred to me that, yes, Obama (and George W. Bush before him), the perfidious GOP elite, the Reid-Pelosi nihilists, demographic shifts, globalization, and a host of other forces have brought us to where we are. Plenty of exegeses have been and will be written about all these culprits. But, no, if I have to point to a moment that spawned the current annus horribilis, it would have to be John Roberts’s vindication of Obamacare on June 28, 2012.
Contempt for Rule of Law
Not because his ruling in NFIB v. Sebelius—and last year in King v. Burwell, when the die had already been cast—allowed a hugely unpopular piece of legislation to survive and corrode our health-care system and economy. But because Roberts recognized that the Affordable Care Act was unconstitutional yet still saved it out of a misbegotten devotion to judicial restraint—under the guise of deferring to “the people.”
Roberts increased cynicism and anger at play-by-the-rules conservatives and decreased respect for institutions across the board.
Sure, the chief justice cleverly wrote his opinion so it wouldn’t increase Congress’s power to regulate interstate commerce and even cut it back under the Necessary and Proper Clause. He also ultimately upheld the individual mandate only by rewriting it into a “unicorn” tax—a creature of no known constitutional provenance that will never be seen again.
But by refusing to follow his own logic, to go where even Justice Kennedy full-throatedly went—I was in the courtroom to hear Kennedy passionately summarize a dissent that would’ve struck down the entire law—Roberts increased cynicism and anger at play-by-the-rules conservatives and decreased respect for institutions across the board.