Photos by Liz Gorman
If you hate politics now, remember to thank Supreme Court Chief Justice John Roberts when it gets so much worse that you find yourself pining away for the debasing idiocy of the good old days.
In a surprise decision, Roberts sided with the Court's liberals to uphold the Affordable Care Act's individual mandate, agreeing that the penalty levied by Congress on those who defy the government's demand to buy health insurance is properly treated as a tax. And, as everyone knows, if there's one thing Congress can do, it's tax.
But Roberts sided with the Court's four-Justice minority in holding that the government's cosmically expansive interpretation of the Commerce Clause was bogus. The government is wrong, Roberts affirmed, to claim that not buying health insurance is an act of commerce that crosses state lines.
Sounds like just the kind of magisterial compromise guaranteed to restore America's faith in the Law and heal our festering partisan wounds, right?
Right. On opposite day.
It's actually more likely that Roberts' deciding vote is a death warrant for civil, constructive politics in our lifetime, and a guarantee that American politics will jam itself so deep into the sausage grinder of mutual hate and masturbatory anger that our only hope of ending the misery will be the collapse of the whole system.
Consider the grim details. In holding that the penalty designed to enforce the mandate is tantamount to a tax, Roberts ensured that the constitutionality of Obamacare depends entirely on a single, strange, dangerous doctrine. There is now a category of things that may or may not be taxes, but that the constitution is understood to require us to treat like taxes for legal purposes. What, in the parlance of our times, could possibly go wrong?
It's precisely that sane-person's fear which led the Court's minority—including the famously warm and fuzzy swing voter Anthony Kennedy—to lambaste Roberts's opinion as intellectually bankrupt flimflammery. “What the Government would have us believe in these cases,” the dissenters warned, “is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardy too far, deep into the forbidden land of the sophists.”
Sadly, Americans trampled the STAY OUT sign at the border of that forbidden land long, long ago. Descending into sophistry is programmed into our cultural DNA. As sages have recognized since the time of Socrates, democracies are particularly prone to debilitating, fruitless arguments about the meaning of words. When all things increasingly seem equally and interchangeably valuable (thanks, commercialism), things lose their fixed meaning, and fights for political power tend to become fights over the way the government will officially define everything—from marriage to political speech to, yes, taxes. Bill Clinton spoke better than he knew when he uttered the epitaph for our political sanity: “It depends on what the meaning of 'is' is.”
When it comes to politics, could anything impair our ability to function as a society more than a Supreme Court commandment to argue over what the meaning of "tax” is? Just when we thought the three-way relationship between money and politics couldn't get any filthier or transgressive, we learn that the government, which can always tax, gets to decide whether whatever it does is a tax—or, more properly, one part of the government can decide whether what another part of the government does counts as a tax. Roberts gives us no limiting principle capable of imposing legal control on that massive power—forget about limiting or controlling the massive conflagration of time, money, and effort that will go into battling for possession of the federal Precious.
There are lesser goblins dancing and cackling around this caldron of hellbroth. With the defection of Roberts, Republicans now have nothing to prevent themselves from viewing George W. Bush as the paragon of stupidity and betrayal (since he was the one who appointed Roberts). Libertarians will lose their last shred of respect for the GOP mainstream. Conservatives will vent what's left of their spleen against the party establishment. Moderates, meanwhile, will grow ever more immoderate in pursuing their fantasy of a government capable of exercising the power to define taxation responsibly.
Mitt Romney will be obliged to run bitterly against the ruling that enshrines the constitutionality of Romneycare. Barack Obama will be compelled to crow over the triumph of a bill passed in the absence of his leadership and in contradiction to his policy as a presidential candidate (and as president). Liberals will be forced to praise a new tax that forces people to buy services from large corporations as a marvel of social progress. Democrats will be forced to hike the mandate penalty to prevent mass nonparticipation in the Obamacare risk pool. Republicans will embrace civil disobedience in the name of preserving the rule of law.
We have seen the future, and it is everyone spending more money on being more crazy.
Because nothing says “national health” like paying to be insane.