JULY 13, 2012
THERE ARE MANY ways to read legal opinions, and not all of them are investigations of law. For many years I have been reading Supreme Court opinions not in the lawyerly way, because I lack the competence and the interest. The lawyerly standpoint misses too much about life, and even about law. It can become an obstacle to a full understanding of social developments: in the study of the Internet, for example, significant concerns about copyright and privacy have overwhelmed more significant concerns about the psychological, cultural, moral, and even spiritual effects of our plague of screens. Law is only law, even in a republic of laws. So I read Supreme Court opinions untechnically, amateurishly, as documents of ideas, of philosophical and political conceptions, of historical interpretations. It is as such documents that some of them exert their most lasting influence upon society. I certainly do not count myself among the adepts who grasp the pilpul of health care. (The crudity of our politics is owed in part to the fact that some of our crises are too arcane to be commonly understood, and so we swing between experts and charlatans.) But there are two sentences in the Supreme Court’s health care opinions that, for this citizen-reader, illuminate (the one) and exemplify (the other) our sorry situation, and vindicate my untrained but expansive approach to these texts, which are the living literature of our system of self-reckoning.
“WHEN CONTEMPLATED in its extreme, almost any power looks dangerous.” This wise utterance appeared in Justice Ginsburg’s opinion, a magnificent shredding of her conservative colleagues’ apocalyptic portrayal of government action. I was reminded of a sentence by Walter Benjamin about morbidity’s friendship for stupidity: “How immensely simplified the world is when it is examined for its worthiness for destruction.” The question at issue, in Ginsburg’s opinion, was the efficacy of inaction: can someone who is not active in a market, such as an individual who has chosen not to purchase health insurance, still be said to participate in it, and alter it, and therefore be properly subject to regulation? For Chief Justice Roberts, the answer was plain and literal: “The distinction between doing something and doing nothing would not have been lost on the Framers, who were ‘practical statesmen,’ not metaphysical philosophers. ... Individuals are no more ‘active in the self-insurance market’ [he is quoting Ginsburg] when they fail to purchase insurance than they are active in the ‘rest’ market when doing nothing.” This is shallow stuff. Inactivity is often a cause, and is responsible for all sorts of outcomes. It is Roberts who was the metaphysical philosopher when he spoke of markets uniformly, abstractly, as if they are all the same, and Ginsburg who was the practical stateswoman when she impiously insisted on attending to the actual features of a particular market, in which we are all participants, with insurance or without, because we are all corporeal and mortal, and will all sicken and die. But Roberts and the other conservatives were exercised, as always, not by the fragility of people but by the theory of government. He began his opinion with a condescending little civics lesson about enumerated powers and limited powers, as if supporters of the Patient Protection and Affordable Care Act were unaware of our constitutional arrangements, and proceeded to caution direly that those arrangements are under threat. Ginsburg exposed the speciousness of the panic. Against the conservatives she wickedly cited an admonition about slippery slope arguments by Robert Bork. Hysteria, she correctly suggested, is just a perspective. A nightmare proves nothing. When the conservatives contemplate government powers from an extreme, as Ginsburg correctly says they do, they make an epistemological choice based upon an ideological inclination. But the assessment of a danger should be a supremely empirical exercise. Most importantly, Ginsburg’s sentence rehabilitated the modulated nature of rational action. The conservatives may scream limited government, but it is the liberal who believes in the possibility of strong but limited exertions of power, of power controlled by reason and balanced between efficacy and legitimacy. For the conservatives, every government profanation of the market (except to save a bank’s ass) is an illusion of limited action, a stratagem, a trick—the nose of the camel—the augury of the end.
AS IF TO CORROBORATE Ginsburg’s analysis, there appeared in the opinion by Scalia, Kennedy, Thomas, and Alito the dark observation that to argue that inactivity in a market affects commerce—here is the second sentence—“is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.” The leviathan! What country do these patriots live in? This incendiary throwback to anti-Federalist rhetoric must have come from Scalia’s pen. One of the pleasures of reading Supreme Court opinions is the regular rediscovery of the exaggerated nature of Scalia’s reputation for brilliance. He is merely a radical. He has only the strengths—easy clarity, militant confidence, entertaining scorn—of a completely settled perspective. He wrestles with nothing. Naturally he and his fellow alarmists cite the Founders—Hamilton, in Federalist 33, warning floridly against the federal legislature becoming “the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane”; but the originalists got the original wrong. Hamilton was actually warning against such a warning, and defending forceful state action, because “government ... is only another word for POLITICAL POWER AND SUPREMACY.” “What is a power,” he asked, in a discussion of taxation, “but the ability or faculty of doing a thing?” And “what is the ability to do a thing but the power of employing the means necessary to its execution?” And “what are the proper means of executing such a power but necessary and proper laws?” Behold Hamiltonian liberalism! If only Obama would speak this way, and defend the nobility of government, the rightness of its agency, instead of blushingly declaring, as he did the other day, that “government can’t solve every problem,” which of course it cannot, but neither can civil society, and the problems that government can solve no other entity can—instead of pandering to the politics of excitability practiced by the Republicans and their representatives in robes.
Leon Wieseltier is the Literary Editor of The New Republic.
This article appeared in the August 2, 2012, issue of the magazine.