What a day.

These are just a few random thoughts on a historic day. 

The decision to uphold the Affordable Care Act was taken by an institution that, as of the latest New York Times/CBS poll, only garners 44% of the public’s confidence.  It comes with yet another 5-4 vote, underscoring division rather than consensus.  In this case, to many people’s great surprise, it was Chief Justice Roberts who broke the tie.  Healthcare remains one of this wealthy country’s most perplexing problems and most volatile political issues.  It may be the latter, coupled with the Court’s low esteem, that prompted the generally conservative Chief to side with the more liberal Justices with whom he usually disagrees.  For the moment, Roberts may have saved any semblance of a Court seen as an honest broker.  Beginning with the controversial Gore v. Bush decision, it’s reputation has been in steady decline.  This one vote won’t change that. 

Perhaps a mark of how much things have changed can be seen by contrasting today with the Court’s 1954 landmark Brown desegregation decision taken in an even more charged political atmosphere.  The decision then was unanimous.  That was not so with the controversial Roe decision but it was still rendered by a clear majority: 7-2.  Justice Harry Blackman, a Republican appointee, wrote the opinion.  John Roberts has yet to show that he can build a consensus on controversial issues. 5-4 decisions do not enhance the Court’s reputation for impartiality, something that is desperately needed at a time when the nation is so divided.  Perhaps this vote suggests he may try harder in the future.  The circuitous legal path he took to uphold the mandate, suggests that he worked hard to find accommodation.  This time it was an accommodation of one, himself, but that proved enough now and he might build on it.

The Affordable Care Act is far from perfect legislation.  It’s appalling that this great nation still leaves so many of its citizens uninsured.  Ultimately, only single payer universal healthcare — Medicare for all — will accomplish that goal.  But it’s an important step forward.  One of the most ironic aspects of the current debate is that the mandate, the Act’s most controversial provision, was the 1989 brainchild of the conservative Heritage Foundation think tank.  It was incorporated into the bill as a way of overcoming the objections of the Right's beloved free enterprise insurance industry.  That conservatives so oppose it today is clearly more a demonstration of callous and opportunistic hypocrisy than of any ideological conviction. 

On the other hand, President Obama and the Democratic leadership did a shockingly lousy job of selling Affordable Care to the American public, including allowing it to be branded Obamacare.  Many are equally angered and mystified by this ineptness, especially given the President’s considerable oratorical talents.  Leaving aside that Republicans continue to be much more adept at selling, I think there are two principal reasons for this failure. 

First is that even before it was enacted, much of the President’s base found the bill wanting; indeed they considered Obama a sellout.  They refused to see what remains a giant step forward as anything more than what it didn’t include.  So the President found himself essentially alone when he should have had the wind at his back.   Liberals can be their own worst enemies.

Second, is something more important.  This has to do, of all things, with Obama’s extraordinary oratorical skills.  My own experience with the craft tells me there are essentially two kinds of public oration.  I’ll call the first stadium oratory and the second small screen oratory.  Excelling at one does not necessary translate into excelling at the other.  In fact, stadium orators often fall flat on their face in more intimate settings while masters of the small screen can’t inspire large crowds.  These require different skills.  For example, megachurch preachers who regularly speak before thousands might well fail badly in the intimate church around the corner.  There are of course exceptions.  Franklin Roosevelt was good at the stadium but also, perhaps even better, on the small screen of his day — the radio fireside.  That unique ability may be attributed to the fact that in his later public life FDR was wheelchair bound and thus forced to adapt to a communications intimacy that otherwise ran contrary to his larger-than-life stadium personality.

Obama is a great stadium orator.  It is what caught the nation’s attention in the first place and what carried him on to the presidency.  It isn’t an accident that he set up these huge events during the campaign culminating in his nomination speech in, yes, a stadium, his massive victory celebration in a Chicago park and the million-person Inauguration in DC.  With the exception of his historic Philadelphia address on race, his most persuasive and moving moments were before large crowds.  This isn’t to say that Obama can’t communicate in smaller settings, but that’s not his primary communicative skill, not where he seems most natural.  Selling healthcare suffered from this deficit.  Of course, Romney might have the opposite problem, which on the national campaign trail could put him at the disadvantage.

It will take some time and distance to assess where we are and what impact today might have both on the Court and on November’s election.  More certainly will follow.  At the moment, I join others in savoring the moment and in realizing that some progress is still possible, just when some had given up.