The key to stage magic is the misdirection of attention - not just in one way for a single trick, but in a wide variety of ways, flowing effortlessly one after another as trick follows trick follows trick through an entire routine. The same is often true of politics as well, particularly the politics of American constitutional law as practised by so-called "principled conservatives", so it's hardly surprising that a relatively smooth operator like Chief Justice of the United States Supreme Court John Roberts would want to patch things up a bit by directing our attention away from just how crassly partisan things have gotten.
Roberts' move has succeeded spectacularly, though perhaps not quite the way he planned as the crassly partisan have attacked him viciously. They smelled blood. They were after short-term gain. They wanted Barack Obama's immediate political defeat, and Roberts denied them. But all this sound and fury merely distracts us from the conservatives' long game, which is the wholesale rolling back of the 20th century - not just the Great Society, Roe v Wade (abortion rights), but Griswold (birth control), Brown (civil rights), the New Deal, and the Progressive Era as well.
The conservative dissent on healthcare has everything necessary to roll back the New Deal and the Great Society; Roberts' opinion largely agrees with them, except for his reading of the taxing authority. Add one or two more conservatives appointed by Mitt Romney if he is elected, and instead of having healthcare reform repealed 5-4, you will have the entire New Deal and the Great Society repealed 6-3, or even 7-2.
That is what this set of magic tricks is really all about.
More than 40 years ago, two pioneers in public opinion research, Lloyd Free and Hadley Cantril, produced a landmark study, The Political Beliefs of Americans: A Study of Public Opinion. While their study produced a great deal of fascinating information, one key finding stands out: Americans generally yearn for simpler world (as envisioned by conservatives), but they pragmatically support a sophisticated array of social spending programmes to deal with actually existing problems (as advocated by liberals).
What makes this finding so significant is that it was neither a fluke nor a historical artefact of a bygone era. It is a central, enduring feature of the American political scene, and we have a massive amount of public opinion data to support it. The most impressive source of such data is the General Social Survey, which began asking a related set of questions about government spending as part of its broader question set in 1972. Four decades of GSS data shows fluctuating levels of support for social spending, but remarkable stability for this same basic fact: a solid majority of self-identified conservatives have always said that spending on national social programmes and problems is either "too little" or "about right".
This is not at all what hardline conservative activists have believed, and yet it is one of the most persistent and fundamental truths of American politics - and it's not just about self-interest. For example, from 2000 to 2008, 56.3 per cent of self-identified conservatives said we were spending too little on assistance to the poor, compared to just 36.6 per cent who said we were spending too little on the military. And multi-decade data from the GSS about social spending on seven items - social security, welfare, education, the environment, health care, big city problems and improving the conditions of blacks - showed that seven out of 10 conservatives thought we were spending too little over all.
"The modern-day American welfare state is not at all a departure from what the founders intended. It is, rather, a departure from those who themselves departed from what the founders had intended."
Those figures are about what you might expect from liberals - not conservatives - if you equate political labels with what you see on TV. But that's just the point: on welfare state issues, the difference between conservatives in real life and conservatives on TV dwarfs the differences between real-life liberals and conservatives. Conservative voters as a whole have no desire to destroy America's welfare state, creating the need for the magic show if the American welfare state is to be destroyed - which is exactly what will happen if Romney is elected and adds one or two more conservatives to the Supreme Court.
Political scientist Scott Lemieux put it bluntly:
What this decision makes particularly clear is the stark choice facing Americans in November... If Mitt Romney is charged with replacing Ruth Bader Ginsburg, the federal powers that have been taken for granted since 1938 will almost certainly perish. The constitutional revolution being proposed by Justices Kennedy, Scalia, Alito and Thomas did not succeed today - but it is frighteningly close, and should it be realised, the effects on America's most vulnerable citizens would be catastrophic.
And Steve Benin, who blogs for the Rachel Maddow show, added, "[T]hese four not only had to reject a century of Commerce Clause jurisprudence, they also had [to] ignore the Necessary and Proper clause, and Congress' taxation power."
At odds with precedents
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While conservatives have long railed against "activist liberal judges" and spoken of "the Constitution in exile" after the Supreme Court dropped its opposition to New Deal legislation in 1937, the facts are strikingly opposite. The conservative rulings that pre-dated the New Deal era were distinctly at odds with earlier precedents, and the liberal judges who overturned them were much more in harmony with the founding generation of federalists than conservatives have ever been.
In fact, the modern-day American welfare state is not at all a departure from what the founders intended. It is, rather, a departure from those who themselves departed from what the founders had intended.
And now, movement conservatives are striving mightily to depart from the founders' vision once again. For decades, they've managed to shift the Supreme Court dramatically to the right, in part by using the rhetoric of "original intent" and the "plain meaning of the Constitution", while attacking "judicial activism" and "legislating from the bench". None of these charges holds up well under scrutiny, but that hardly matters as they're almost never scrutinised. Instead, they serve as a sort of shorthand to make judicial appointments an electoral issue while actually hiding their consequences, which most voters are only sporadically aware of.
But the conservative healthcare dissent makes all this remarkably plain. On the one hand, conservative legal theories are an anti-historical charade. On the other hand, their intention is to permanently thwart the overwhelming majority of the American people - liberals and conservatives alike - who support the modern-day welfare state.
And in that way, the need to distract attention has reached a new fever pitch.
Want to see me pull a rabbit out of my hat?
Paul Rosenberg is the senior editor of Random Lengths News, a bi-weekly alternative community newspaper.
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.