To read this week's press coverage, you'd think not just a landmark Supreme Court case was upon us, but a jurisprudential Armageddon. The moment of truth has arrived, the die is about to be cast, the Rubicon crossed … pick your own favorite cliche. There are so many out there.
Charles Krauthammer, one of my favorites in the columnizing/calumniating trade, sees the fate of the Republic swaying in the balance in the current hearings on Obamacare. As he writes in the Washington Post:
“If the law is upheld, it fundamentally changes the social contract. It means the effective end of a government of enumerated powers — finite, delineated powers beyond which the government may not go, beyond which lies the free realm of the people and their voluntary institutions. The new dispensation is a central government of unlimited power from which citizen and civil society struggle to carve out spheres of autonomy.”
If the court sides with the administration, all is lost.
On the opposite but equally fervid end of the political spectrum, Linda Greenhouse waves off such fears. And any disagreement, too. Those challenging the new health care law, she explains, haven't got a precedent to stand on. Their learned disquisitions amount to, well, nothing. She writes, you won't be surprised to hear, for the New York Times.
It may be a journalistic convention to present both sides of a legal controversy in neutral fashion, she concedes, “without the writer's thumb on the scale.” But, “free of convention, and fresh from reading the main briefs in the case,” Ms. Greenhouse is here to tell us that the constitutional argument against the health care law is “so weak that it dissolves on close inspection. There's just no there there.”
If the court strikes down this Signature Achievement of the Obama administration, all reason is lost.
Only it doesn't work that way. Time, not the justices, and certainly not the pundits, will be the ultimate judge. History, contrary as ever, will deliver its own verdict. And there is no escaping its jurisdiction.
The great precedents of the past may prove not so great after all. Dred Scott was going to solve the slavery question once and for all in 1857. The next year, a gawky ex-congressman, ex-Whig and — who would've predicted it? — future president of the United States chose to take on the most powerful senator and celebrated orator of his day, The Little Giant himself, Stephen A. Douglas, in a series of whistle-stop debates out on the prairies of Illinois. And what had been settled no longer was.
History had intervened. Soon enough the fateful lightning of His terrible swift sword would be loosed. And another decision was reached.
A new accommodation would have to be reached with destiny. Once again, the Supreme Court stepped forward to lay down the law, and settle this vexing question forever. Vanity of vanities: The court's solution, handed down in Plessy v. Ferguson at the turn of the last century, came to be known as Separate but Equal.
Only one justice, a Kentuckian by the name of John Marshall Harlan, who always did see too far ahead, dissented. Only he had the candor to state what everyone had to know: that there was nothing equal about separate-but-equal, that it was but a “badge of servitude,” and that it would not stand. Even if it took another half-century to unsettle that “settled” law.
The moral of the story: Nothing is as certain as the too-certain say it is. Whatever this court rules, its decision, too, will be appealed. Before the bar of history. And in that court, nothing is ever settled till it's settled right.
TRIBUNE MEDIA SERVICES