In an illuminating piece, the Washington Post‘s Ezra Klein traces the trajectory of the constitutional argument against the individual mandate from preposterous, fringe position to a real, greatly-feared legal possibility. The concept at the center of Klein’s account is something called a “permission structure” with the power to make the improbable plausible through “third-party authentication” or “endorsements from respected figures or institutions” the public admires.
[W]hat the conservative movement had done — with a big assist from Verrilli [the bumbling solicitor general who screwed the pooch in oral arguments] — was build a permission structure that would permit the Republican-appointees to the Supreme Court to rule against the individual mandate. They had taken a legal campaign initially dismissed as a bitter and quixotic effort based on a radical and discredited reading of the Commerce Clause and given it sufficient third-party authentication to succeed. If the Supreme Court rules against the mandate, it will no longer be out on a ledge. It will be in lockstep with the entire Republican Party, many polls, a number of judges, the impression the public has gotten from the media coverage, and the outcome of the oral arguments.
I think Klein gets the story of how all this came about pretty much right. And Klein’s correct to assign a substantial role to Verrilli’s ineptitude, yet I don’t think he captures the significance of the stumble: the solicitor general was caught unprepared, just as the entire progressive movement was caught unprepared by the remarkably unified conservative offensive. The conservative campaign wasn’t just “initially dismissed” as quixotic. Liberals dismissed the constitutional challenge at the beginning, in the middle, and all the way up to the end of oral arguments, at which point it suddenly and finally dawned on the institutional left that the wingnuts weren’t just a bunch of posturing idiots. At which point, too late.
In the shadow of Klein’s “permission structure” story is the story of how the American left failed to rouse itself sufficiently to dismantle this structure and deny its “permission.” A concerted drive for “third-party authentication” won’t likely prevail over an equal and opposite campaign of “third-party invalidation,” or whatever you’d call it. Yet liberals, very comfortable indeed with the resounding consensus of liberal legal scholars who don’t have seats on the Supreme Court, largely confined themselves to haughtily scoffing at the right’s “radical and discredited reading of the Commerce Clause,” and then were startled and astonished to discover that this may not have been enough.
However the Supreme Court rules this week, I don’t think anyone can say that the right’s decades-long effort to build an integrated system of institutions operating largely outside the ambit of liberal academia and liberal legacy mass media was entirely misspent. And one can see in variably successful ventures such as Air America, MSNBC, the American Constitution Society, and the Center for American Progress a healthy spirit of emulation born of the recognition that all the Ivy League, the New York Times, and NPR won’t cut it. So it’s a little surprising that the left remains to this day so liable to surprise by the occasional efficacy of the right-wing noise machine. How many floggings does it take to expect the Spanish Inquisition?