Commentary Magazine


When Legacy and Legitimacy Collide

In the opening chapter of his new book Twilight of the Elites, the Nation’s Chris Hayes makes an astute point about the challenge then-Senator Barack Obama set up for himself when running for president. In some ways, it is a recurring theme in presidential politics, but it was clearly more pronounced in Obama’s case. As a candidate, Obama had to defeat the epitome of his party’s establishment: the Clintons, their brand of politics, and their allies–and then run against George W. Bush’s party. To do so, Obama had to tear down the public’s already shaky faith in their elites and their elite institutions. But as a liberal who believes in a muscular federal government, Obama also needed to immediately restore the reputations of those institutions, or he couldn’t govern.

Hayes thinks that’s pretty much what the president tried to do, and ended up being an establishment elite himself. I partially disagree, and what we saw at the Supreme Court yesterday, and in the months and days leading up to it, shows why. The headlines in the mainstream media after ObamaCare survived its own death panel by the mercy of Chief Justice John Roberts were telling. Viewers learned, almost uniformly, that Roberts had saved the Court and its reputation. But that reputation was under constant assault from Obama himself–this time as president–and his allies. As if he were an insurgent candidate again, Obama put in unprecedented effort to tarnish the reputation and legitimacy of the Court, as it turned out decisions he didn’t like and even contemplated overturning his signature piece of legislation. But then a funny thing happened.

Not only did the Court uphold ObamaCare, but Roberts twisted constitutional logic in knots to save the bill. Suddenly, Obama needs the public’s faith in the institution he kicked dirt at for three years to be restored, or the legitimacy of its ObamaCare decision will be called into question. Liberal pundits said the Roberts ruling would improve the Court’s image. It’s possible, but because this legislation was so broadly unpopular, it’s not clear at all that they will applaud this decision. Unlike Roberts, the Congress that passed ObamaCare, highly paid liberal purveyors of Beltway conventional wisdom, and, yes, Obama too, the people are outside the elite institutions looking in.

And what they saw was a display of quintessentially elite behavior. Obama has always been clear: he is a fan of single-payer health insurance, and has always opposed the individual mandate, which he has now embraced, and which he insisted wasn’t a tax. The bill that finally passed in his name was a mess, but the president had to have something–his legacy depended on it. What the process produced was not good legislation, but by that point it no longer mattered; Democratic Party leaders began admitting that nobody had any idea what was actually in the final bill.

Yesterday, at the Supreme Court, John Roberts made a decision based on his legacy as chief justice. He doesn’t seem to completely believe what he wrote in his majority opinion, and neither does anyone else on the Court. Just like the legislation itself, the Court ruling that saved ObamaCare was the result of an elite member of an elite institution thinking about the history books.

The Supreme Court can take some solace in the fact that it wasn’t the only institution whose legitimacy was under constant assault from the Obama administration. Once the Democrats had their overwhelming majority in Congress taken away by the people, it too found itself in the dock. This was ironic, because the Senate was and is still controlled by the Democrats; in order to delegitimize the institution, the Democrats have to perform an ongoing and ugly act of self-sabotage–for example, by blocking broadly popular bills and refusing to pass a budget. And as Bethany reported this morning, the institution of the presidency–currently consumed by a habit of using vulgar language–isn’t faring all that well either.

But the media’s complicity in all this cannot be blamed on the president. Surely, Obama has set a tone, and that tone has been followed. But he isn’t responsible for the more hysterical smears of his supporters. It’s not Obama’s fault, for example, that a writer at a respected liberal journalistic institution accused the country’s most accomplished jurists of attempting a coup–Obama isn’t an editor there, nor is he the fallen education system that produced such thinking.

But he may find that he’s uncorked something he can’t get back in the bottle once he goes looking for institutional legitimacy and only finds rubble. And in such a case, he may find that this, too, will be his legacy.

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