A Cynical Society Update Part 3
When I wrote The Cynical Society, I was guided by two opposing propositions: that democracy was deeply ingrained in American everyday practice, and that cynicism was as well, presenting a major challenge. This dynamic between democracy and cynicism was clearly evident in the case of the recent Supreme Court decision on the constitutionality of “Obamacare.” Chief Justice John Roberts demonstrated how individual action matters. He apparently acted in a principled fashion, defying cynical interpretation. In my judgment, he made a significant principled contribution to the health of the body politic, as well as to the health of many American bodies.
I had an inkling that this could happen in April:
“I worry that this [cynical] kind of attitude has even become the common currency of the Republican appointed justices of the Supreme Court, as they express Tea Party talking points about the health insurance mandates, with Justice Scalia pondering the forced consumption of broccoli and the like. But I have hope. It seems to me that it is quite possible that the Court, with Chief Justice Roberts’s leadership, will seek to make a solid decision based on the merits and not the politics of the case, in the shadows of the Citizens United decision and Bush v. Gore. The integrity of the court, its reputation as a judicial and not a political institution, may very well rule the day.
The way the Court handles this case is a good measure of the degree cynicism has penetrated our politics and culture. My guess is that the health care law, in whole but more likely in part, will be overturned in a political 5 – 4 decision, or if the Court wants to fight against cynical interpretation, attempting to reveal principled commitment, the decision will be 6 – 3 upholding the law, with Kennedy and Roberts, joining the liberals. If the law is overturned, from my partisan point of view, the chances for a decent life for millions will be challenged. But I also worry about what this says about the state of our political culture.”
I was close to predicting the outcome. I thought Roberts was key. I was pessimistic, but had some hope. My mistake was thinking that if he affirmed the constitutionality of the law that Justice Kennedy would follow Roberts.
The talking heads on cable and the print pundits of various political orientations are now mulling over the partisan significance of this. Particularly interesting is the split among conservatives. Elite conservative pundits, David Brooks, George Will, et al., see the principled conservative grounds of the Roberts decisions. Rush Limbaugh, Sean Hannity and company see betrayal. In the long run, the elite perceive a smart move in the grounding of Roberts’s opinions. Relying upon Congress’ taxing power and restricting the use of the commerce clause serves the conservative project. Right wing populists see treason to their cause. Generally speaking, Democrat and liberal judgments are parallel with those on the right. While most see victory and support for their cause, there is concern that the precedent has been set for future conservative judgments, building upon Roberts’s actions. Of course, there are also some on the anti-Obama left who read the decision as a diabolical indication that the two factions of the corporate elite are in lockstep, solidifying the final defeat of the single payer plan, promoting the interests of the insurance companies, limiting the power of the federal government to advance social justice.
I have my own partisan judgments. I think Obamacare is flawed but that it significantly moves in the direction of decency. Millions will have access to health care, use it and be healthier, as a result of this law. The principle of universal health care will become more broadly recognized as a right. And over time the flaws in the system will be addressed, resulting in a more efficient and effective health care system, with improved public health. The Supreme Court properly let stand one of the great accomplishments of President Obama.
But as a sociologist of political culture, beyond partisanship, I see another important advance: a small but significant blow against cynicism for the democratic side of the democracy–cynicism dynamic. Roberts appeared to do two things in his judgments by going along with the conservatives in his reading of the commerce clause and by going along with the more liberal justices in confirming the constitutionality of Obamacare. On the one hand, as in all proper court decisions, he confirmed his position with reference to the constitution and to previous judgments of the courts. This is certainly open to cynical interpretation. Whether it is original intent of the founders, or precedent, or in the reading of the facts of the case, the partisan will read the case in a partisan way often unintentionally. In fact, as the most basic sociology of knowledge teaches us, for example Mannheim’s, we all inevitably do this. But, on the other hand, by going against the partisan grain, Roberts confirmed the ideal that the law exists beyond political interests and calculation, beyond the immediate politics of the day.
Ironically, Roberts may have come to this position in a highly calculated, even cynical fashion. It is possible that he found the grounds to make a decision that both was true to his conservative commitments and enhances his court’s reputation. Did he actually cynically and hypocritically strike a blow against cynicism? Did he calculate that the reputation of his court beyond his conservative enclave is worth a little flexibility and act accordingly in his own interest? Is Roberts a hypocrite? If so, I say once again, two cheers for hypocrisy!
Individual action matters, but so does the integrity of our institutions. I continue to be concerned about compromises to institutions to achieve worthwhile ends. Opting out of the hard work of consensus making produced a law of about 2,700 pages. I read several hundred pages of it and gave up. If instead of a 2,700 bill which few people understand even to this day, shorter bills (perhaps 36) which provided more legislative intent and fewer legislative delegations to regulators would have yielded better laws, and have avoided using budgetary techniques and manipulations to achieve major policy goals. This, in my view, degrades the institutions.
The same can be said about the Supreme Court decision. The Roberts’ opinion appears somewhat tortured to me. Basically, Justice Roberts opined that if the Senate and Congress had written the mandate as a tax then it would have been constitutional. The only problem is that the mandate was clearly written in legislative language as a penalty, not a tax. There are about 20 taxes in the bill besides the mandate penalty all of which were clearly described as taxes in the bill. The intent of the people who wrote the bill and voted on it is clear. Justice Roberts had to imagine that if writers of the bill had chosen to use their constitutional power to tax, then the law would be constitutional. None of the lower courts took this position, and the argument for it by the administration was weak to say the least. Tax bills are intended to raise money. Full compliance with this bill would actually yield no tax mandate revenues. Questions are further raised about the Supreme Court position. If the mandate was a tax and not a penalty, then the court should not have ruled on it until someone was actually taxed according to previous rulings.
So what has happened is that Justice Roberts basically rewrote a bill to achieve an outcome. It remains to be seen whether if this was the best way to address the healthcare issue. Additionally, it is unclear what economic effects the funding mechanisms will have on the economy.
Justice Roberts may have become a hero to some for an odd assortment of reasons; but it may have come at a high price to the both his own reputation and to the integrity of the court. It is worth noting that only opinions of the individual judges were issued on the limitation of the commerce clause. These positions did not become the opinion of the court. I suspect that Justice Roberts may have to deal with his relationship with other members of the court.
It still remains to be seen if quality and affordable healthcare will be available to all citizens; and the impacts on the entire healthcare system is still in doubt.
Being that many conservatives think of taxes as a form of punishment, equating taxes with a penalty is not so far fetched. In fact, it sounds quite reasonable compared to several of the court’s other equivocation’s: money is equal to speech, a corportation is a person, etc. Rather than harming the integrity of the court, this particular decision highlights the role of interpretation in court decisions; that is, in order to justify a decision, any form of “tortured logic” might be presented; and I would say, cynically perhaps, that politics plays more of a role here than any legal reasoning; the latter comes only after the partisan fact. Despite what any supreme court justice might say, the court has been, is, and perhaps will always be, political. Does that harm the courts integrity? I would say this, what harms its integrity is hiding behind the facade of legal objectivity, while it is clear as day that this is an exaggeration, if not an outright myth. Could it be that its interpretation the whole way down?