Buckley got his start when conservatism was at its nadir, infamously derided in the Trilling phrase calling it ‘irritable mental gestures masquerading as ideas’. Ike was forced to govern as a moderate liberal and his New Republicanism was rightly derided by Goldwater as a dime store New Deal. Progressives are in the same place today, with a liberal President being forced to make neoconservative attitudes towards civil liberties and war powers permanent, his signature domestic accomplishment the passage of the Heritage Foundations healthcare plan once proposed by Senator Dole. Unionization at its lowest level since the Gilded Age and with Ryancare threatening the future of the Great Society and eventually the New Deal itself. We have been on defense for far too long. Its time to change the conversation and move forward as a movement. And its time to make working families our top priority again, we cannot simply be the socially liberal neoliberal party anymore.

We need a progressive movement unafraid to call itself progressive, dare I even say liberal, and to advocate for strong social liberalism and work outside the Democratic Party. For far too long we have tethered our movement on specific candidates, specific elections, and short term goals. It is time to start playing the long game and that is how we compete. Its also time to be unafraid to play the money game either to build that movement. We need a strong presence in universities, particularly in law schools, a strong presence within religious institutions, and a strong presence in government service. We also need to revitalize and integrate the trade union movement into the progressive movement as well. These are the long term goals, and focusing all of our efforts on re-electing the President or taking back Congress are short term efforts. We have to be willing to put, as Goldwater and Buckley did, a dyed in the wool progressive candidate and risk losing with them to take the party from the economic center-center right and back to the left and take the movement with us.

The question is what, if anything, we’re going to do about it.

You and I both know that Gruber and McDonough were not just talking to each other they had access to and advice from some of the best constitutional lawyers in the country and they trusted them. Maybe they should have talked to you?

We (and I include myself) continue to write and behave as if these institutions had not been fundamentally subverted by a vast right wing conspiracy. Habit or sentiment, maybe. Or cowardice.

Tempering legislative strategies against some new judicial set of principles is a sucker’s game. There are no principles, just opportunism, and it’s a receding target.

And whatever label (“hyper-political,” if you like) anyone chooses to place on the current Court, its makeup on the conservative side has been stable since Alito was appointed. Nobody should have been surprised.

On March 23, 2010, the day that President Obama signed the Affordable Care Act into law, fourteen state attorneys general filed suit against the law’s requirement that most Americans purchase health insurance, on the ground that it was unconstitutional. It was hard to find a law professor in the country who took them seriously. “The argument about constitutionality is, if not frivolous, close to it,” Sanford Levinson, a University of Texas law-school professor, told the McClatchy newspapers. Erwin Chemerinsky, the dean of the law school at the University of California at Irvine, told the Times, “There is no case law, post 1937, that would support an individual’s right not to buy health care if the government wants to mandate it.” Orin Kerr, a George Washington University professor who had clerked for Justice Anthony Kennedy, said, “There is a less than one-per-cent chance that the courts will invalidate the individual mandate.”

Read the whole thing here. (Emphasis mine.)

I get that some people saw the challenge coming before others, certainly. But this wasn’t about being in some sort of elite “cocktail party circle” of people who only think one way. This was about an intentional attack on basic constitutional principles, a media that went along with it, and a hyper-political court.

What if “Hillarycare” had gotten more traction in ’94 and, in reaction, the ensuant GOP congress passed the Heritage Foundation’s 90′s healthcare plan, which looks almost exactly like Obamacare?

Would any of the GOP states brought suit?

Would any conservative judge rule against a GOP passed law on the via the Commerce Clause?

Would there even be a question of its constitutionality?

I maintain that what the legal supporters of Obamacare failed to take into account was not the legal arguments, but rather the reactionary nature of the right wing at both the state level and in the courts. The remarkable unsigned dissent representing the conservative four makes it very clear that this was not a typical legal argument in their eyes, but rather a chance to undo 70+ years of liberal policy. It reads like a road map on how to challenge almost every federal program that is not the actual shipping of goods across a state line. Everything from the Dept of Education to the USDA would have been ripe for court order changes.

Stare decisis is no longer a reality at the SCOTUS for any legislation, past or present, that has a Democratic or even bipartisan stamp. That is what every “legal expert” needs to keep in mind until the makeup of the bench changes.

For every situation demanding a decision maker’s attention, Neustadt and May advised that person or those persons to identify the underlying concerns that are “known, unclear, and presumed.” Factors that are presumed often need special attention because presumptions can be based on faulty perceptions; and those perceptions can result from failing to “talk with someone outside of your cocktail party circle.”

I tried, I hope successfully, to adapt Neustadt and May’s advice about questioning presumptions to planners and managers of public projects. It sounds like the crafting of the universal health care law could have made a good case study for either of our books!