To Still a Wackobird

"Simply because we were licked a hundred years before we started is no reason for us not to try to win."

I came across this line last week while re-reading To Kill a Mockingbird for my humanities class, and it struck me that it nicely captures the appeal of the GOP's recent quixotic effort to defund Obamacare that resulted in the government shutdown.

The line belongs to Atticus Finch, the attorney who takes on the legal defense of Tom Robinson, a black man falsely accused of rape. While I think it absurd to compare the principled nobility of that fictional act to the GOP's attempt to destroy the Affordable Care Act, the people who rallied to Texas Sen. Ted Cruz's cause don't. They believe in the nobility of the hopeless fight.

Harper Lee's novel retains its power more than 50 years after it was first published because it not only sends a clear message of condemnation of racial prejudice, but also tries to understand how whites came to hold those views, and turn those views back on them.

One of the lessons Atticus imparts to his children is the need to understand those we are tempted to dismiss or condemn: "You never really understand a person until you consider things from his point of view ... until you climb into his skin and walk around in it." On some level, Lee's novel is an exercise in just that.

Lee understands the depth of the racial prejudice she attacks, and knows how to reveal it. She adroitly connects her hero to the very quality ostensibly prized by the adherents of the South's "Lost Cause" mentality. When Atticus says it is worth fighting even when you know you will lose, Scout associates the sentiment with his Cousin Ike.

"Tell you, Atticus," Cousin Ike would say, "the Missouri Compromise was what licked us, but if I had to go through it agin I'd walk every step of the way there an' every step back just like I did it before an' furthermore we'd whip 'em this time ..."

Lee's brilliance consists of taking this mindset--the one that allowed defeated Confederates to salvage something from their defeat by focusing on the honor of making a good fight rather than the system of slavery that victory would have perpetuated--and transferring it to a character who stands for the rule of law and equal justice, rather than the Jim Crow oppression that the "Lost Cause" sentimentality made possible. Atticus tells Scout: "This time we aren't fighting the Yankees, we're fighting our friends." Lee neatly equates the proponents of white supremacy with the hated Northerners.

If what white Southerners truly value is a principled fight, Lee suggests, then they should stand with Atticus Finch. When they don't, they show what it is they truly value: the preservation of a system that institutionalizes their racial privilege. In some sense, Lee's novel revolves around that insight: the gap between the purported ideals and the ugly reality that they mask.

The power of the ideal is undeniable: persisting in the face of certain defeat is supposed to prove the purity of the motive. The honor of the fight is all.

This is the ideal embraced by the supporters of the shutdown strategy. More mainstream Republican figures said the idea was crazy and bound to fail (John McCain has memorably called Cruz a "wackobird"). To them, an effort that has no chance of success is foolish, even counterproductive. For others, however, the fact that it has no chance is precisely what recommends it.

In the aftermath of his utter lack of success, Cruz refused to express any regret. He called the fight a "courageous stand" and a "profile in courage." When asked if the fight was worth it, Rep. Michele Bachmann replied: "Absolutely.... What we did is fought the right fight.”

It is too easy to dismiss Cruz's shutdown advocacy as a stunt meant to propel him into the rank of 2016 presidential contenders. Of course it was that. The more important question is this: why did he think (evidently correctly) that it would have appeal among the Republican Tea Party base?

I would argue it is because he rightly recognized the appeal of the "Lost Cause" mentality.

In the course of American history, that concept is most closely associated with white Southerners, and while it may be more common among them, it is not at all uniquely "Southern." It is, however, an idea that has a special appeal to people who believe they have already lost the battle.

Many Southerners are Tea Party supporters, but not all Tea Party supporters are Southerners. During the shutdown, when a Tea Party protest at the White House brought out a Confederate battle flag, it was easy (too easy, really) to label all Tea Partiers as "neo-Confederates." Yes, race is an element here. It is not, however, everything. What is going on is more complex than that.

What we too loosely refer to as the "southern" mentality of the Tea Party is not geographic, but cultural. The Tea Party represents a subset of the larger culture: more white, more rural, more elderly, more traditional. The reason the apocalyptic rhetoric, the dig-in-your-heels style, and the confrontational (even anti-democratic) tactics appeal to Tea Party supporters is due to a simple fact: they see "their" America dying.

That's what they have in common with the Southern fire-eaters of the pre-Civil War era.

What many people don't understand about secession is that it was prompted merely by the fact of Lincoln's election, not anything concrete he had done--he had not even taken the office yet when eight states seceded. Secession was a response to what his election represented: the end of the Southern veto over national policy. Lincoln's election proved the northern states could elect a president without the aid of the southern states.

At that point, the fire-eaters decided the democratic game was over within the United States: they would always lose. Thus the only way to win, the only way to preserve "their" America, was to separate and create a new one in which they would be the permanent majority.

Today's GOP faces something similar. Demographic trends suggest that in the future, the GOP will not be able to remain the same ideologically and also be a majority party. Since it is not geographically defined the way the pro-slavery South was, the Tea Party core cannot secede in order to create a new majority (though "secession" and "nullification" have predictably enjoyed a recent resurgence in Tea Party circles).

One solution to this dilemma would be ideological change, which would require writing off the Tea Party. But the party is unwilling to take that step. Nothing shows that better than the way Speaker John Boehner abdicated all leadership in deference to the Tea Party caucus during the recent shutdown.

So what the party has been trying to do instead is change the rules so that they can control government without having to be an actual majority party.

That is what holds together the variety of the tactics used by the GOP since Obama's election in 2008. The abuse of the filibuster in the Senate has become a vehicle of minority veto, a way to say no to everything, to make a supermajority the new requirement for things that traditionally required a regular majority. The voter ID laws reflect the same desire to rig the outcome: if we cannot get a majority of the existing electorate, we can find a legal way to redefine the electorate and create an artificial majority.

The shutdown debacle was the same thing--unable to achieve the "correct" result through normal democratic process, Tea Partiers decided to hold the funding of government hostage to achieve its end of defunding Obamacare.

Why choose that issue? The term "Obamacare" has come to encompass everything they despise: the man himself, the electoral coalition that brought him to power and successfully kept him in office, the governmental philosophy he represents. It is the embodiment of their fear--bordering on certainty--that history is passing them by, that the America they believe in is passing away.

The desperation in the rhetoric is real. As long as cynics like Ted Cruz continue to pander to it, it will not diminish, and the Tea Party will remain politically relevant--and destructive.

Republicans are trying their best to frame the current divisions within the party as merely a matter of "tactics and strategies," as Cruz recently put it. It is not. It is a fight between those who think time is short and compromise is betrayal, and those who don't. The Tea Partiers are right, I think, if deep down they believe that they are fighting a losing battle. As long as they continue to demonstrate power within the GOP primaries, however, the racket of the wackobirds will go on and on.

Trey Gowdy Thinks Obamacare is Comparable to Segregation

The lunacy never ends.

It's bad enough that one of the two great American political parties has gone completely off the deep end, indulging in magical thinking that says it can reverse the results of the last presidential election simply by politically holding its breath. Now they want us to see their political temper tantrum as the equivalent of the Civil Rights movement.

In today's Spartanburg Herald-Journal, my representative, Trey Gowdy (R-SC), said the following about the government shutdown and the Tea Party obsession with derailing the Affordable Care Act:

“Some people might say that we should go along with what the President wants, and the Supreme Court ruling, but I would submit that just because it's law doesn't make it a good law,” Gowdy said. “There was a time when it would have been unlawful for (Sen.) Tim Scott and I to sit-down at a restaurant and eat together. There are bad laws and those worth staying and fighting for and I happen to think this is one of them.”

It shouldn't be necessary to point out how utterly absurd this comparison is, but as George Orwell once said, "we have now sunk to a depth at which the restatement of the obvious is the first duty of intelligent men."

So let me state the obvious: a law that makes it possible for uninsured Americans to buy health insurance at a price they can afford is not comparable to segregation.

Gowdy postures as a man of principle, but anyone with an elementary understanding of what constitutes principles would understand the difference. Yes, the general idea (a law is not necessarily a good law) is true.

Everything else Gowdy says is despicable, an insult to everyone who fought to end segregation. Those people quite literally put their lives on the line to challenge a moral and constitutional injustice.

What has Trey Gowdy done?

Trey Gowdy, talking to a history class in his district. Hopefully
he did not tell them that Obamacare is like segregation.

He has refused to approve ongoing funding of the federal government because he insists on defunding a law he does not like.

And what has Trey Gowdy sacrificed for this "principle"?

He continues to draw his salary while hundreds of thousands of federal employees, many trying desperately to make ends meet, are furloughed and lose their incomes. He continues to enjoy the security of knowing that he and his family are well-insured if, God forbid, any health problems should arise, while he tries to prevent less fortunate people from having that same peace of mind.

A real profile in courage, that.

And what will happen if Trey Gowdy gets his way? Who will his principled stand help?

No one.

But he can be proud of having made a principled stand to free other people from the burden of having health insurance.

If Trey Gowdy were truly concerned with principle, he would take seriously the principle upon which our government rests: that our laws are the result of a process, one which was followed and ratified in every particular in the case of this law. It is not simply "what the President wants." It is the law of the land.

Trey Gowdy has every right--even the duty--to argue his case, to do all he can to convince Americans to elect representatives, senators, and a president who want to repeal the law. If he succeeds, people like me who favor the idea will have to accept repeal. Because we accept the legitimacy of the process.

But what he and his Tea Party cohort want is not to play by the rules, but to blow them up. They don't give a damn about process. If it does not serve their ends, they will manipulate it, undermine it, pervert it until they get what they want.

Their arguments failed to sway the Supreme Court, they failed to win the presidential election, they failed to gain control of the Senate, and they think none of that should matter. They should get their way regardless, because they are RIGHT.

After all, they think they are like the Civil Rights protesters.

The lunacy never ends.

John Roberts and The Case of Dred Scott v. Madison

Last March, I wrote a post about the Court's consideration of the health care law. My point then was that it was possible for a judicial victory to turn into a political defeat. That could still be the case, if the Court's ruling upholding it motivates the conservative base that is so viscerally opposed to the Affordable Care Act. Already, in an echo of the reaction to the Brown v. Board decision, some in the blogosphere are calling for the impeachment of Chief Justice John Roberts.

My major concern in the original post was that the Court's conservative wing would overreach, much like Roger Taney did in the Dred Scott decision in 1857. The temptation had to be great. The conservative movement is nearly unanimous in its rejection of the act, and even the so-called "moderate" swing vote, Justice Anthony Kennedy, was prepared to throw out the entire law.

It seems, however, that John Roberts was sensitive to that danger. Certainly he could have sided with the four conservative justices in this case. But he didn't. Why?

My good friend Bill Carleton wrote the following in a comment to my original post:

What you say reminds me of a CSPAN documentary I just saw about the workings of the Supreme Court. The current Chief Justice, John Roberts, is heard in a voice over, as the camera pans the portraits of prior Chief Justices, remember the lesson of Taney - don't be THAT man.

It would seem that Roberts thought exactly that. Taney's overtly political decision tarnished the reputation of the Court for years. By avoiding a 5-4 decision in which all 5 votes to overturn the greatest achievement of a Democratic president came from justices appointed by Republican presidents, Roberts may have avoided becoming THAT man.

But as observers on the right and left have noted, he did so in a rather odd way--by effectively agreeing with the dissenters on many of the substantive points, particularly on the matter of the Commerce clause. Some people see this as a stealth attempt by Roberts to set the stage for more significant limitations on the power of Congress in the future.

George Will, for example, argues: "Conservatives won a substantial victory" in the case. Since reformers have used the Commerce clause to expand government power since the New Deal, the argument goes, Roberts has served the larger cause by putting limits on the use of the Commerce clause, which Will, of course, thinks is all to the good.

Pamela S. Karlan, writing in the New York Times, sees the same thing but from the opposite political perspective. Karlan fears that Roberts "laid down a cache of weapons that future courts can use to attack many of the legislative achievements of the New Deal and Great Society."

In short, the argument is that in exchange for allowing this law to stand (barring a political decision by a future president and Congress to repeal it), Roberts has established the ground work for a revolution in constitutional law that might limit significantly the power of Congress under the Commerce clause.

If this is indeed Roberts' game, then instead of pulling a Dred Scott, he decided to pull a Marbury v. Madison. In the latter, Chief Justice John Marshall ruled against the short-term interests of his political party, the Federalists. As Gordon Wood puts it in Empire of Liberty, Marshall's early tenure as Chief Justice showed "his strategy of retrenchment and conciliation and his genius for compromise while at the same time asserting the authority of the Court."

Federalists lost the bitter presidential election of 1800 to Thomas Jefferson, but in the lame-duck session of Congress between the election and Jefferson's inauguration, the now-repudiated Federalist majority passed the Judiciary Act of 1801, which outgoing President John Adams signed into law only weeks before he was to leave office. The law was a rather overt power grab--it created new circuit courts, and Adams immediately appointed Federalist judges to them. It was meant to preserve Federalist power in the judicial branch after the party had lost the Congress and the Presidency. In 1802, Jefferson's Republicans repealed the 1801 act.

In the meantime, one of the last-minute judges appointed by Adams, William Marbury, sued to receive his commission, which the new Republican administration had refused to deliver. Marshall was under a great deal of pressure. Federalists wanted him to rule that the Republican repeal of the 1801 act had been unconstitutional. Republicans warned that a blatantly political ruling by a Federalist judge would reveal the partisan nature of the Supreme Court and require Congressional action to rein it in.

Chief Justice John Marshall

Marshall's decision brilliantly solved his problem. He ruled that Marbury had a right to the commission, and that the Jefferson administration had no right to deny it to him.

So, Jefferson lost, right? Not really. Marshall also ruled that Marbury had based his petition for relief to the Court on a provision of the 1789 Judiciary Act, and that provision, Marshall said, was unconstitutional. Thus the Court had no power to order that Jefferson's Secretary of State, James Madison, deliver the commission.

So, Jefferson won, right? Not really. He thought the idea of judicial review was undemocratic, and said that if the Courts alone had the power to rule on constitutionality of laws, it "would make the judiciary a despotic branch." But since he had "won" the case on those grounds, Jefferson was put in the position of accepting--at least indirectly-- the validity of judicial review.

In the short run, Marshall gave the administration a political victory. In the long run, he established the precedent of judicial review, which is not explicitly stated in the Constitution, but is the greatest power the Court has. But not challenging the Jefferson administration directly, Marshall maintained the reputation of the Court and enhanced its power.

The parallels to what Roberts did last week are obvious. He too resisted the pressure of the political party that nominated him to the Court. He too handed that party a short-run defeat. He too (at least somewhat) rehabilitated the Court's reputation.

Whether or not he has also set the stage for a conservative judicial revolution, such as Will hopes for and Karlan fears, depends entirely on future Courts and future decisions.

But Roberts does seem to have decided--at least for now--that he'd rather be Marshall than Taney. We should all be grateful for that. But for George Will's hopes and Pamela Karlan's fears to be borne out, Roberts would have to some day pick up those judicial "weapons" and use them against the New Deal and Great Society.

For the record, though John Marshall effectively created the Court's power of judicial review, he served on the Court for more than 30 years after Marbury v. Madison and never used it to invalidate another law passed by the United States Congress. In fact, no Court used it for that purpose until 1857, when Roger Taney used it in the Dred Scott decision. Hopefully, John Roberts will remember that, too.

Fear Can Be Productive, Fearlessness Destructive

There is something different happening in this economic downturn. It's not just the fact that the recovery has been stubbornly slow, but the political response to it. For the first time in modern American history, conservatives have no fear of the social consequences of economic distress.

This is an unprecedented situation, and a dangerous one. It has turned one of the two political parties into an uncompromising, extremist faction blinded by ideology.

In his column in the New York Times last Friday, David Brooks argues that Republicans today are not extreme, they just have a different viewpoint: "many Republicans have now come to the conclusion that the welfare-state model is in its death throes." Democrats, on the other hand, fail to see the writing on the wall and are simply re-arranging the deck chairs on the old Titanic.

The behavior of today's Republican Party is a problem for those like Brooks who see themselves as responsible conservatives. No reasonable person wants to defend the people who still question where the president was born, or the people in Michigan who put a sign saying "Obama Presidential Library" on a bullet-hole pocked outhouse last week, or even legislators who are willing to take the government to the brink of default.

So Brooks ignores that kind of embarrassing extremism and focuses instead on this big-picture "viewpoint" that he clearly views as much more intellectually respectable. The problem is this: the very viewpoint he identifies is also an extremist one.

Brooks implicitly suggests that the perception of extremism is due to the extremity of the situation: we are at a turning point in world history: the "welfare-state model" is dying. I would respond that we are now seeing the domestic economic and political consequences of a real turning point in world history that came over twenty years ago: the death of communism.

The limited welfare state in this country came into being as a response to two great crises of American capitalism--the depression of the 1890s and the Great Depression of the 1930s. What we call the "welfare state" was initially the product of two large movements that followed those economic calamities: the Progressivism of the early 20th century and the New Deal.

In both cases, intelligent American political leaders had one central insight: the only way to preserve American capitalism from the threat of revolution was to reform it, to moderate it, to curb its worst excesses. As Theodore Roosevelt put it in 1912:

There is urgent necessity of applying both common sense and the highest ethical standard to this movement for better economic conditions among the mass of our people if we are to make it one of healthy evolution and not one of revolution.

Without reform, revolution was inevitable. The true conservative, TR knew, was a reformer.

The reformers of both eras knew there was something worse out there as a possibility: the specter of communism. That radical ideology gave disgruntled workers an alternative that promised a more just and equitable society. The wisest of the capitalists understood the threat this ideology represented, and more importantly, they knew that the only way to preserve capitalism was to reform and limit it. On some level, they were scared--but this was the good kind of scared, the kind that sees a real threat and responds to it rationally and reasonably, producing something better.

The result was a regulatory system that began modestly under TR with legislation like the Pure Food and Drug Act and the Hepburn Act (which empowered the Interstate Commerce Commission so that it could effectively regulate the railroad industry). Under FDR, the result was Social Security and unemployment insurance, both of which were designed (at least in part) to prevent future economic downturns from spiraling out of control. The New Deal also saw the creation of the SEC to regulate Wall Street and the Glass-Steagall Act to regulate the banks.

The result of all of this reform was the emergence of the United States as the great economic powerhouse of the mid-to-late 20th century.

What is different in this latest crisis of capitalism is that capitalists today are not scared of the "mass of our people." Ever since the collapse of the Soviet empire and communism 20 years ago, American conservatives have had no fear of social unrest, at home or abroad. They believe that there is no alternative for frustrated workers, so these reforms of the 20th century are no longer needed. They can turn back the clock on reforms they never really liked, ones they'd only grudgingly accepted as necessary to preserve social peace.

With nothing to fear, they have spent the last 20 years trying to undermine the regulatory state and the limited welfare state. They've deregulated the financial industries, repealed Glass-Steagal. They've repeatedly cut taxes to "starve the beast." They've encouraged the growing income disparity that has left the middle and lower classes stagnant or declining while the wealthiest accumulate ever-greater shares of the national wealth.

And when as a result it all came crashing down in 2008, they blamed not the tax cuts, not the increasing concentration of wealth at the very top, not the deregulation, not the banks, not the markets. Instead, they blamed the unions, people on unemployment, recipients of public assistance, government workers. The people they no longer feared, the people they've long seen as impediments to even greater profits and concentrations of wealth.

The Republican Party has, for the last three years, acted like people who think they hold all the cards. They don't need to compromise. The worse the economy gets, the better it is for them politically, the easier it becomes to scapegoat the government and administer the final death blows to the welfare state. They are not afraid.

Unlike smart conservatives in earlier ages, today's conservatives see no reason to curb the excesses of capitalism. Far from it. They rail against "Obamacare" despite the fact that it retains (and arguably subsidizes) the private insurance system and is dominated by conservative ideas of health insurance reform. They whine that the modest financial industry reforms of the Dodd-Frank Act mark the end of freedom.

More cruelly, rather than trying to take the edge off in tough times, they seem intent on sharpening the pain inflicted by the failings of the economic system.

Feeling no fear, seeing no need to reform, they are pressing what they see as their advantages--not only do they refuse to raise taxes on the wealthiest Americans, they are pushing for further cuts in tax rates that are already unusually low. Rather than bolster the protections against the vicissitudes of the economic system (like unemployment insurance and food stamps), they seek to diminish or remove them. Rather than make concessions to unions to help workers, they try to destroy them.

The argument (such as it is) that Brooks makes is that we cannot afford the "welfare-state model" anymore. In this perverse vision, government is so big that it has strangled capitalism (fact--there are 500,000 fewer federal government employees today than there were in 1980, though there are 82 million more Americans). Now the welfare state is too expensive, we can't afford it, it has outlived its usefulness, so now it has to go.

But the historical reality is different. Yes, undeniably, the modern welfare state would be impossible without the wealth creation of capitalism. But it was also the emergence of the regulatory state and the welfare state that made possible the continued growth of capitalism after its near self-destruction in the depressions of the 1890s and the 1930s.

Without adequate regulation, without government policies to moderate its impact, free market capitalism produces socially destabilizing and destructive swings of boom and bust.

Smart conservatives in America's past knew that. Today, a precious few like David Frum occasionally try to pull conservatism back in that direction (e.g., reminding them that opposition to "Obamacare" is not enough, they need an alternative that addresses the problem of the uninsured).

But mostly, people like David Brooks, people who should know better, enable modern conservatism's short-sightedness by elevating it to a respectable "viewpoint" and ignoring its extremism.

It is extreme. It is short-sighted. It is stupid. And worst of all, it is self-destructive.

It used to be that conservatives were wise enough to fear extremism. Today, they embrace it.

The Supreme Court and the Health Care Law Decision: Judicial Victory, Political Defeat?

The Supreme Court takes up the constitutionality of the health care law today. I'm not a constitutional historian, so I can't speak definitively about its constitutionality (though the law strikes me as a reasonable use of the commerce clause, and to find otherwise would seem to me like a reactionary reversal of 80 years of constitutional history).

The politics of the decision seem likely to be interesting, no matter what the Court decides. Ever since it was signed into law by President Obama two years ago, Republican candidates have denounced it as unconstitutional and have pledged to work to repeal it. The presidential candidates know that calling for repeal of "Obamacare" is a sure-fire applause line every time.

Politically, that won't be easy. Not only would the Republicans need to win the presidential election, they'd need to hold onto the majority in the House of Representatives and not only win the Senate, but get 60 votes to overcome a likely Democratic filibuster to thwart repeal.

In theory, then, the GOP should welcome the prospect of the Supreme Court doing its work for it. But as the old saying goes: "Be careful what you wish for. You might get it."

There is an inherent danger in trying to settle political disagreements by court decision. It is appealing, no question. If one can get the Court to declare the other side's view unconstitutional, one not only wins the immediate battle, but the war. No mere democratic majority can undo what the Court has done. Unless the Court reverses itself, that view stands. What could be better?

Well, the politics can get tricky.

No case better demonstrates that than the infamous Dred Scott decision of 1857. Technically, the matter was a fairly simple one: Was Dred Scott, who had been a slave, now a free man due to having been taken to free territory?

The question could have been answered simply, by looking at that narrow question. But the Court, looking to issue a more comprehensive decision that some people hoped would put an end to the political controversies surrounding slavery--especially slavery in the territories--decided to go big. As James McPherson puts it in Battle Cry of Freedom, many Americans were "yearning for settlement of this question."

Not only did the Court rule that Scott was still a slave, it also ruled that no black person could be a citizen of the United States (despite the fact that many had been treated as such for decades) and that the 1820 Missouri Compromise, which had banned slavery in the northern territories, was unconstitutional.

The majority opinion, written by Chief Justice Roger B. Taney (an Andrew Jackson appointment), is widely considered to be one of the worst, if not the worst, in the history of the Court. Taney was a southern partisan, who privately said that northerners were trying to destroy the south: "the knife of the assassin is at their throats." According to one of the foremost historians of the case, the Dred Scott decision was "essentially visceral in origin ... a work of unmitigated partisanship."

Southerners and Democrats were thrilled, thinking the decision had destroyed the Republican Party, whose position on slavery was that it should be banned in the territories--precisely what the Court had now said could not be done. The decision was called "the funeral sermon of Black Republicanism." Southerners were convinced that they had won the final victory over anti-slavery forces: "Southern opinion on the subject of Southern slavery ... is now the supreme law of the land."

But the politics turned out differently. Republicans like Abraham Lincoln seized upon the Court's opinion as a rallying cry. Far from destroying the Republican Party, it breathed life into it. It now became more important than ever for Republicans to control Congress and the Presidency, so they could nominate new members to the Supreme Court and undo that awful decision.

Perhaps more importantly, Taney and the Court, with their overreaching decision, reversed the political dynamic of the moment. For many years. Southerners had been portraying themselves as victims of northern (political) aggression. Abolitionists and other anti-slavery agitators had been attacking their "peculiar institution" for years. They could plausibly claim that the political discord in the land came from their northern enemies.

Then came Dred Scott. It had undone the 1820 sectional compromise, and in the process, wrecked what remained of the spirit of political compromise. Using the undemocratic institution of the Supreme Court, they had thwarted the political process, which Republicans could claim was stumbling in its typically awkward American way toward some resolution.

The decision, Republicans could say, showed that southerners and Democrats had no respect for or faith in the democratic process. They were simply determined to protect slavery any way they could--even if it meant hopelessly perverting the historical record, even if it meant twisting themselves into knots to justify their illogical opinion.

The Dred Scott decision was a pyrrhic victory for southerners. Three years later, the Republicans proved the "funeral sermon" was premature--they won control of the Presidency and both Houses of Congress. The case produced not an end to the debate, but rather a political backlash that ended with the destruction of the very institution of slavery that southerners were trying so desperately to save.

It would be foolhardy to predict the possible outcomes of all of the potential Supreme Court decisions in the health care case. The temptation for some members of the Court to issue a sweeping decision will be strong, but a more temperate majority may emerge. The safest thing to predict is that a decision that initially appears to be a clear-cut judicial victory could end up being a political defeat.