AUDIE CORNISH, HOST:
We're joined now by our regular political commentators, columnist E.J. Dionne of the Washington Post and the Brookings Institution, and David Brooks of the New York Times. Both of you in Aspen, Colorado today for the Aspen Ideas Festival. Gentlemen, welcome.
E.J. DIONNE: Good to be with you.
DAVID BROOKS: Good to be with you.
CORNISH: So we just heard this story about conservative Tea Party activists and one of the quotes I noticed there, someone saying, it refocuses us for 2012. Politically, is this going to be a refocusing or a replay of the last, you know, 18 months of political arguments about health care.
BROOKS: I guess I would say a replay. You know, it's still going to be an election about jobs fundamentally, but it does energize people. Talking to Republicans, people are much more energized than they were over the past year. Personally, I find myself quite energized. I was glad Roberts ruled the way he did. I hate it when judges overrule the democratic process. They should only do it in extreme circumstances.
But it did at least remind me of the fact that the Obamacare bill really doesn't fix the fundamental problems. We still have the fee for service structure which creates these massive inefficiencies. We still have the tax exemption on employee plans...
CORNISH: But David, let me stop you there. When I heard the speeches from Mitt Romney, from House Republicans, it sounded like they could've been written six months ago in terms of their reaction to the ruling.
BROOKS: Well, the problem with the plan are essentially still the problems with the plan. That doesn't fix the fundamental underlying perverse incentives we have built into our health care system. So they're going to make that case. They're going to make the case that it overly centralizes power. That is the case they made. That is the case that probably won them at least 25 House seats in 2010 and it's the case they'll make again. It'll be a secondary issue in 2012, but a pretty strong one, I think.
DIONNE: I don't think that this is going to energize a whole lot of voters who are not already energized against President Obama. The people, I think, we heard in Don Gonyea's piece at that rally, I very much doubt that they were prepared to sit at home. And I think a couple of things, one is this is huge for the president because all you have to do is consider what it would have looked like if this had gone the other way.
And then, there would have been all these stories about Obama being ineffective, having the wrong priorities, investing so much and then losing. So this is a huge victory for him. And the other thing is it's a huge victory even for fixing the health care system in some of the directions David says because if this had been blown out of the water, it would have been very hard to mount another serious health care reform effort, where now there is a plausible structure in place for further repairs to the system.
I am a little worried about the part of the decision that restricts the federal government's powers to use Medicaid to expand health insurance coverage. I'm worried that there may be, in some states, a lot of people excluded from coverage that way. We're going to see. That's the one alarming thing or troubling thing for me in the decision. But otherwise it's something - it leaves a structure we can build on and that's huge.
CORNISH: I want to go back to something David just said about the ruling itself because in reading some of the reaction today, I notice analysts talking about the way the ruling was written, that Chief Justice Roberts appeared to want to avoid criticism of the court for judicial activism. But yesterday on our show, I heard this bit of tape and I thought it was worth bringing up to you guys here.
(SOUNDBITE OF "THE GLENN BECK SHOW")
STU BURGUIERE: Why can't we appoint justices on our side that actually do the things they're supposed to do?
CORNISH: That was Stu Burguiere on "The Glenn Beck Show," and it just seemed as though that, you know, this sentiment is pretty common and runs counter to the dissection of the ruling.
BROOKS: Why is that guy so calm? You know, this is - I have to admire my colleagues Charles Krauthammer and George Will, conservatives stand for judicial constraint and the Roberts court has been a restrained court. The previous courts overruled about nine laws a year. The Roberts court overrules, on average, about three laws a year. And this was a decision that went against a lot of our political predilections, but a lot of conservatives, not the majority, but a significant number of conservatives said, fine, we wish they'd overruled Obamacare. Nonetheless, we do believe in judicial restraint. Roberts was protecting his institution.
CORNISH: But there's this expectation of a political court, you know, and it seems like - is there any way to not think of it in that way? I mean, E.J., you wrote a column earlier this week about calling for the resignation of Justice Antonin Scalia.
DIONNE: Right. Well, that was about his outburst against President Obama's immigration policies, on questions having nothing to do with the case at hand. I just thought he crossed the line after getting awfully close to it for many years. But you talk about judicial restraint. We were one vote away from an unbelievable case of judicial activism.
If you look at the dissent filed to the opinion, four conservative justices were prepared to use the court to get in the way of precisely what David talked about, the effort of the legislative and executive branches, the elected branches of government, to solve a complicated problem.
And I think Justice Roberts in this case saw that if the court had done that, the attacks that it was facing from lots of people, including me I should say, were just going to escalate and that the legitimacy of the court, which has already been called into question by decisions from Bush v. Gore through Citizens United, it was going to escalate further, and I think he was trying to avoid that.
It doesn't mean he won't be activist in the future on other issues; I think he just decided that in this case, you had to go with the legislative process. David and I were talking before the show, there does seem to be a split between a certain kind of elite conservative opinion, which is trying to take solace in the idea, well, this might narrow use of the Commerce Clause on behalf of progressive legislation in the future. I'm not sure that's a threat because that'll depend on future courts, and...
CORNISH: David, I want to let you argue your point. Is that true? I mean, are you feeling the same way?
BROOKS: About the Commerce Clause or about...
CORNISH: This idea of sort of a difference between elite conservatism and everyone else about the court.
BROOKS: I wouldn't use the word elite. I think thoughtful and far-seeing is more appropriate there. But there is - there are a lot of angry conservatives who believe Roberts argued illogically and overly cleverly. I happen to agree with that. His argument was really not very persuasive. But he had to get to a certain result, and he was going to find a way by hook or by crook.
Nonetheless, I do believe he issued restraint, and what he did was he opened up the ground for a lot more political change and policy change. If you talk to people in health care, in hospitals and health care delivery systems, they all talk about the incredible rate of change and innovation in delivery systems.
I actually think if we polarized this more, that rate of change had been slowed. So now we get to have a political argument about Obamacare, and we get to see the innovation in the hospitals go at the same pace and policy innovation go at the same pace. So that to me is pretty good news.
CORNISH: But it doesn't necessarily change the argument about judicial activism.
DIONNE: Well, it does to - I mean, I think that Justice Roberts lowered the temperature a little bit through his decision, which is what he wanted to do. And I've been very critical of Justice Roberts, and on this one I thought he did a very responsible thing. But this is going to be a fight through the election because all voters should realize that the court is really still one vote away from being a thoroughly - a thorough-going conservative court.
Right now you have Kennedy or Roberts who might jump. This is actually the first time that Roberts had voted in a five-four case with the liberals. I'm not expecting him to do it very often.
CORNISH: One last thing, and we only have a few seconds left, but buried was - buried in the news was the vote on U.S. Attorney General Eric Holder and the criminal contempt of Congress. Was this an overplay of the hands by Republicans, David, or Democrats not taking this seriously enough?
BROOKS: I thought that vote was over the top. I think the administration should just be open. It was a stupid policy, this Fast and Furious thing. I thought the reaction from the Republicans was a little harsh. But why can't the Obama administration just let us get to the bottom of this stupid policy?
DIONNE: I think it's - the policy was designed to show how terrible our gun laws are and how much our gun laws are feeding guns down into Mexico in the mess. I think this was a politically motivated vote. I agree the administration should've handled this better, but I think the vote was unfortunate.
CORNISH: E.J. Dionne of The Washington Post and David Brooks of The New York Times in Aspen today, good talking to both of you.
DIONNE: Good to be with you.
BROOKS: OK, thank you. Transcript provided by NPR, Copyright National Public Radio.