On Monday we talked about how the political process is turning the Supreme Court into a kind of super-legislature to resolve the contentious issues that elected officials lack the will to resolve themselves. That's bad enough on its own but the political process follows it up by using the Court as a punching bag, undermining public confidence in institutions that are supposed to be symbols of trust, consistency, and fairness.
One thing that differentiates the American right from conservatives in other similar nations is its willingness to throw the institutions of the state under the bus for short-term political gain. The heart of conservatism, at least historically, is the defense of institutions: the family, the state, religion, and so on. While the liberals are running around promoting a libertine "Do as thou wilt" philosophy, conservatives traditionally grab the moral high ground by defending culture, traditions, and social institutions. That happens today in some instances (the defense of "traditional marriage", for example) but for the most part, the American right's ability to defend the institutions of the state (i.e., the government) has been crippled by decades of ideological litmus-testing that have promoted free market worship above, quite literally, god and country. In other words, Americans rarely defend their institutions when they make unpopular decisions. If the Supreme Court makes a decision that the right doesn't like, no one says "We don't like this outcome but we accept it as legitimate, and we will work within the process to change it." Instead, the message is, "If the Supreme Court does something we don't like, then fuck the Supreme Court. It's corrupt, undemocratic, and untrustworthy."
When teaching the presidency, I always assign Al Gore's concession speech after the debacle of the 2000 election. The quote that stands out to me:
Now the U.S. Supreme Court has spoken. Let there be no doubt, while I strongly disagree with the court's decision, I accept it. I accept the finality of this outcome which will be ratified next Monday in the Electoral College.
This is in line with the spirit in which the Constitution was written and those so-often-exalted "Founders" hoped the system they created would function. You will not like every decision the government makes, and the fact that you do not like it does not mean that the government is not functioning. By the time they reach seven or eight years old most small children have grasped the fact that one does not always get everything one wants in life. I think that the authors of the Constitution expected nothing more than that we would apply that life lesson to the democratic process.
The problem is that it's just too tempting and there's too much cheap political gain to be had from feeding the anti-government paranoia that fills the heads of so many Americans. They rail against "activist judges" and promote the idea that if the legal system produces an outcome with which you disagree, you should be able to ignore it. If the Court does something you do not like, it is evidence that the Court is controlled by dark forces and cannot be trusted. The end result, of course, is that what is supposed to be the least political (although certainly not apolitical, as we discussed earlier this week) is held in the same regard as the rest of our political institutions. Opinion polling shows that the Court's approval rating among the public isn't much higher than the President's mediocre rating, although both certainly dwarf Congress's miserable performance.
You may be thinking that the reason Americans believe, as the polls show, that the Court makes decisions based on personal political ideology is because the Court does exactly that. Given our embarrassingly low levels of information, though, that assumption is tenuous. It is more likely that we assume this about the Court because we don't know anything about it except that we don't trust it and it makes decisions that we dislike. The more highly visible the Court becomes, the more it is undermined. The more it is undermined, the more we believe that the entire government is worthless. The more we believe that, the more "small government" rhetoric and the people spouting it seem appealing.