John Judis: If the Disinterested Judiciary Rejects My Ideological Interpretation of the Commerce Clause, Then Disinterestedness Itself Will Collapse, and Maybe We'll Have a Civil War. Wait, What?


The New Republic's John Judis has a long, interesting, and wrong-headed essay out defending the notion of "disinterestedness" from attacks by both left and right. The condensed thesis:  

American democracy has long depended on institutions that behave [disinterestedly]. And not just the courts: It's also the much maligned "mainstream media" of The New York Times, The Washington Post, CBS, ABC, and NBC, as well as the older think tanks and policy groups, like the Brookings Institution and the Council on Foreign Relations. All of these institutions have traditionally rested their laurels on disinterested judgment. They might not always succeed, but it's the standard they set for themselves. And, when they do meet it, […] it's as if a cool breeze has blown through the overheated landscape of American politics.

In the last few decades, however, first the left and now the right have trained their sights on this realm of disinterestedness, seeking to discredit and undermine it. Recently, these attacks have seemed to increase. The result is that, today, a very basic feature of American democracy appears to be in peril.

Then follows some nostalgia for institutions that "saw themselves as providing direct guidance to government and educating the public about national and world affairs," some criticism of New-Left skepticism of authority, then a broad claim that conservatives took that ball and began running with it in the 1970s, culminating in the rise of Fox News and the attempts to defund National Public Radio and so on. There are plenty of questionable claims and assumptions along the way about what comprises (and who gets to determine) "disinterestedness," but I think the most illustrative contradiction comes from Judis himself:

[I]n trying to enlist the courts in their effort to repeal Obama's health care plan, conservatives have resorted to legal obscurantism, introducing a distinction between "activity" and "inactivity" (which does not appear in the Constitution) to argue that the federal government doesn't have the right to impose a penalty on the "inactivity" of failing to buy health insurance. […]

Will this challenge to disinterestedness fade with time? […] I certainly hope so, because, if it does not, we could be looking at a political system that begins to resemble that of the late nineteenth century, with its sharp and seemingly unresolvable clashes between different groups in American society. The next big test will be the Supreme Court's ruling on Obama's health care plan. If the court rejects the plan on the kind of spurious grounds that its opponents have endorsed, then it will have abandoned its historic commitment to disinterestedness. And American democracy will be in very big trouble.

Judis is hardly the first commentator to flatly assert that there is no respectable legal argument against a law that is so far batting just .500 .600 in court challenges, but he's probably the first to do so in the context of declaiming ideological attacks against the judiciary.

As for his presumably disinterested judgment that the case against is "spurious" and depends on "legal obscurantism," Judis might want to read his own magazine–Obamacare cheerleader Jonathan Cohn, who disagrees with the Commerce Clause objection, nonetheless characterized it this way: "Like many good constitutional arguments, the argument can be put a lot more simply: If the government can penalize you for not buying insurance, can it also penalize you for not buying a television or a GM car?" Not so obscure, that.

This is ultimately why the disinterested mediators of John Judis' fantasy life have been consistently bleeding mindshare for a half-century now. In their exalted role as patriotic arbiters of public policy and policemen of discourse, these allegedly impartial clergy have made predictable and alienating errors in judgment. All it takes is being on the wrong side of one argument to see just how paranoid and derisive centrists can be toward people who disagree with them. This goes for anti-TARP nihilists and anti-drug warriors alike. The New Left had it right: being the Best and the Brightest is no bulwark against catastrophe; in fact it can be a short cut.

Some Reason.tv legal obscurantism below: