THE SUPREME COURT, PART II: UNDERMINING

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.

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27 Responses to “THE SUPREME COURT, PART II: UNDERMINING”

  1. J. Dryden Says:

    There's what we know, and what we believe. There's what we think, and what we feel. America's political thinking is closely aligned to its religious dogma: we like simplicity over complexity, gratification over tolerance, and magic over science. (And I might add that this quality is by no means confined to the right–my years in the center of one of the country's fountainheads of leftist activism introduced me to more magically wishful fantasies than a David Copperfield/Blaine slashfic site.)

    We lead lives of the body, rather than of the mind. That's not good or bad; it's just so. We're babies, and as such, we're narcissists. When things don't break our way, we lack the intellectual ability to experience nuance (and thus chalk it up to the big picture), and we lack the emotional ability to experience frustration (and thus chalk it up to living in a world occupied by other people.)

    There is no longer a sense of value attached to the idea of delayed gratification. Blame it on easy credit. Blame it on advertising that permeates every form of mass entertainment. Blame it on a business culture that denies confidence in long-term employment, in pensions, in the notion of an earned retirement. We want what we want and we want it now.

    So how can we be a nation of political conservatives? Culturally, sure–shit, we're as big a bunch of knuckle-draggers as the western world has to offer (always please noting that we do not murder our daughters because of a one-child policy, nor do we mutilate said daughters in order to keep them chaste–we've got a long way to fall before we join the villains of this world–but the wickedness of others does not excuse our failings)–but politically? We don't believe in the long game. So how can we believe in tradition? In institutions? In truths that do not change according to our immediate needs?

    I don't think we can. Particularly because our 'conservative' leaders, aren't. Fox News wants a revolution. (And MSNBC wants a counter-revolution, which its ratings indicate it will not get.) The radical right, now mainstream, is an iconoclastic bunch–the kind that don't like "laws" that get in the way of "justice"–that don't like "judges" and "politicians" who get in the way of "running the country." This is not conservatism. It's not even reactionary politics. It's revolutionary, and the big lie behind it is that the people behind it are fighting to get government off our backs, when what they're really doing is fighting to *become* the ones on the other guys' backs.

    If the SC is no longer, well, 'S'–then that's pretty much the point at which that peg of the governmental tripod falls. Congress? Cancer has higher ratings. And even if Romney wins, he'll please no one, because no one in office can please a revolutionary.

    There are so many pleasant, sensible things about this country. But our political life is not among them. And the people who care about it make the rules for the rest of us. And they're angry beyond reason. So, please, please, please, make sure the Reichstag's sprinkler system is up to code…

  2. J. Dryden Says:

    NB: That was really fucking long, and really fucking sweeping, and I apologize for the 8 or 9 or 10 things I said that grossly oversimplified matters. I should wait 'til morning to post. My bad.

  3. Middle Seaman Says:

    Reality doesn't appear to support you rather benign view of the SC. We can probably agree that in the last three decades the nominations to the SC intended to bring about a court that will guarantee the nominating president political views. The result is simple with two Democrats and three Republican presidents and some luck, the SC is biased to the right in the extreme. After all, Scalia, Thomas, Alito and Roberts are extremists on the right. Kennedy, the non swinging swing vote, is on the right and strongly influence by the other right wingers.

    I believe that one could write a SC simulation program that has the justices political views and run it against previous and future decisions of the court and will generate simulated decisions with very high accuracy. This will disprove that "the Supreme Court … a kind of super-legislature to resolve the contentious issues that elected officials lack the will to resolve themselves."

  4. Nunya Says:

    Ed, that was on of your finest post to date. I have come to expect nothing less.
    J. Dryden – I have long admired your commentary on this site but you have absolutely nailed it tonight. Take comfort in the fact that your words have influence.

  5. c u n d gulag Says:

    J. Dryden,
    "That was really fucking long, and really fucking sweeping, and I apologize for the 8 or 9 or 10 things I said that grossly oversimplified matters."

    That's ok – but 'long, sweeping, and grossly oversimplified' is MY turf!!!
    I'll forgive you – THIS time! ;-)

    Seriously, it was very well said!

  6. c u n d gulag Says:

    I have no great love for this man, but he was 100% right on this:

    “Mark my word, if and when these preachers get control of the [Republican] party, and they’re sure trying to do so, it’s going to be a terrible damn problem. Frankly, these people frighten me. Politics and governing demand compromise. But these Christians believe they are acting in the name of God, so they can’t and won’t compromise. I know, I’ve tried to deal with them.”
    ~Barry Goldwater

    And that folks, IS the problem today.

    When Goldwater lost, his right-wing (but not necessarily Evangelical) followers got involved in politics from the bottom. They ran for school boards, and all sorts of minor political positions, and worked their way up to state and national levels.
    Many of them were foot soldiers in Nixon's and Reagan's campaigns.

    It was Reagan and his people who brought the Domionist Christian Evangelicals into politics by using Jerry Falwell's recently formed "Moral Majority," and combining them with the hard-core righties who were already the foot soldiers for Conservatism.

    It was a match made in Hell.

    They formed the 'New Conservatism.'
    Dominionist Christians have a Manichean outlook on politics and the world – Heaven v. Hell, black v. white, right v. wrong, saved v. damned – with no room for compromise.
    One doesn't 'negotiate with Satan.'

    The Dominionist Chrisitans and Right Wing Conservatives continued to interbreed, and over the last 30 years, they are virtually indistinguishable from one another – except for the old school Business Conservatives who still remain in the Republican Party, and who over the years, manipulated both for their own gain.

    But those Business Conservatives decided to allow to be formed the rabid Tea Party (a party so that Republicans could have a new label, after the disastrous George W. Bush Presidency), and encouraged this astro-turfed 'movement' to undermine the new President and his party.
    The problem was, not only did the Tea Party begin to believe its own press clippings, it also drew in followers of the old John Birch Society, also the KKK and other White Supremacist Groups.

    And the Business Conservatives, the real powers-that-be over the last 30-40+ years, is now seeing that they are losing control to these rabid Jesus-freak, maniacs, morons, racists, misogynists, xenophobes, and/or homophobes.
    Any R politician running for reelection now has to please this 'new base,' or they'll be primaried.
    Hence, NO COMPROMISE, in DC, lest they be called RINO's, be primaried, and lose their position.

    So now, modern Conservatism is a combo of all of the above.
    And everything in politics is either "God's Will," or 'Satanically Evil.' There is no middle ground in their battles between Heaven and Hell.

    And Hell is where they're taking this country to.
    Just ask the late Barry Goldwater.

  7. c u n d gulag Says:

    See J. Dryden,
    That's how you do 'really fucking long, really fucking sweeping, and grossly oversimplified!' :-)

  8. Tim H. Says:

    Looks like the Democrats are the new conservatives, the Republicans having become something, other. Wonder if I'll live long enough to see liberals in power again?

  9. anotherbozo Says:

    "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."

    The inanity in a nutshell. We live in Samuel Beckett country.

  10. bb in GA Says:

    I do not like thee, Doctor Fell,
    The reason why – I cannot tell;
    But this I know, and know full well,
    I do not like thee, Doctor Fell.

    Tom Brown, 1680

    //bb

  11. mangrilla Says:

    Middle Seaman is on the nose here.

    "Given our embarrassingly low levels of information, though, that assumption is tenuous." – Ed, seriously? We have their written opinions on each case. We can trace legal precedent (Scalia is for overreaching government power in the commerce clause area when dealing with marijuana, not when dealing with medical treatment) and where certain ideas appear out of thin air (activity/inactivity in Justice Roberts' ACA decision), read their political rhetoric (Scalia raving against the "Gay Agenda" in Lawrence v. Texas), and have evidence of their political activities (Scalia golfing with Cheney when he was about to rule on a case Cheney was implicated in, Scalia and Thomas attending Koch retreats, etc). That assumption isn't tenuous in the least, it's bloody fucking obvious.

    "The more highly visible the Court becomes, the more it is undermined." – Right, because if it wasn't apparent before, the less we know about a major governing body, the better off we'll be!

    I think the actual problem here is kind of an uncanny valley. Because interpreting legal opinions/precedent requires a certain amount of sophistication and familiarity with the subject matter, some completely reasonable legal outcomes (say, a cocaine dealer being let off the hook because the evidence against him was obtained through an illegal search) can be interpreted in a way by laymen that makes the decision seem completely at odds with common sense ("They let a coke dealer off the hook because of some teensy technicality!"). I think the problem is less that the court is visible, more that we don't do enough to educate people on how it should work, so we end up with a situation where people have information that they don't know how to parse.

    Additionally, I think it's kind of important for the court to be undermined, to a certain extent. While I subscribe to the view that the Supreme Court is a vital and necessary component of our government, it's not as if it's a perfect component. We're one of the very few countries on earth with a court system that operates in the way ours does: there's certainly room for improvement.

    At the same time, imagine your argument applying to a different sphere: banking. The whole LIBOR scandal analogizes well: a group of good old boys who present themselves as objective arbiters, but actually use their vast amounts of discretion to perform some pretty intense self-dealing. Perhaps the Supremes aren't self-dealing (although that's a little bit more iffy when talking about someone like Thomas), but they are certainly acting more in their own interest than in any objective fashion.

    "The more we believe that, the more "small government" rhetoric and the people spouting it seem appealing." – Perhaps, although I think the small government rhetoric really just appeals to people it's going to appeal to anyway. I think it's completely possible to question the way the court operates and push for change without necessarily giving up on the idea of government completely.

  12. John Says:

    The United States Constitution describes a system of government that is based around compromise and reaching consensus.

    The legislative branch is composed of senators and representatives that are elected by the people. There are two subdivisions of this branch to represent two different ways of handling power distribution in the states — one that gives the most power to the most people, and one that gives equal power to every state unit regardless of population. They create laws, and a law must be agreed upon by a majority of both before it can pass on. They must compromise and reach consensus to achieve this.

    The executive branch has the president, which is elected indirectly by the people via the electoral college. This is a single person who's sole power, as far as the making of law is concerned, is to make suggestions to the legislative branch. When a new law comes across the president's desk, they can either approve it, or veto it. Vetoing a law does not destroy it, it simply triggers a process by which the legislative branch must come to a more firm consensus before passing it. It is, in essence, a way of saying "Are you *sure* you want to do this?"

    The judicial branch is, ultimately, composed of the 9 justices of the supreme court, a deliberately odd number to reduce the chance of stalemates. These justices are appointed, not elected, and have the position for life. This is intended to render them as impartial as possible, because they have nothing to lose no matter what choice they make. They are the ultimate last line of consensus on matters of law — when a law comes to them to either be upheld or struck down, it has already been the product of compromise and consensus in the legislative branch. But even then it may still not be in keeping with the rules laid out in the constitution, and the justices of the SC have one last opportunity to come to a consensus on the law — to keep it, or to get rid of it.

    All of this, every part of it, is based around consensus, which requires compromise. The entire objective is to generate law that almost everyone mostly agrees on.

    But the current political attitudes in the US reject the very idea of compromise. In essence, they reject the very foundations of the system of law as laid out in the constitution.

  13. acer Says:

    @Middle Seaman:
    Surely, that "Obamacare" dissent-cum-screed will put to bed any notion that Kennedy is a thoughtful, flexible moderate. And we're at a point where John Fucking Roberts looks moderate.

  14. butler Says:

    Um, let's not get all "objective journalism" around here while ignoring facts – some members of the SC are, thus the SC *is*, "corrupt, undemocratic, and untrustworthy".

    Only the biggest elephant in the room: this Supreme Court opportunistically implemented Citizens United using pretext rather than real legal precedent.

    Jurisprudence is a dynamic, evolutionary process based on the weight of historical legal precedent. Members of the USSC routinely ignore this for various personal reasons (mostly political and material gain and sometimes pure ideology) making the court a shitshow in keeping with the other branches of our government.

  15. Talisker Says:

    Mangrilla:

    "The more highly visible the Court becomes, the more it is undermined." – Right, because if it wasn't apparent before, the less we know about a major governing body, the better off we'll be!

    I don't think that's the point. By its nature, the SC is a horrible place to settle highly visible questions.

    If Congress debates and votes on something, voters are more likely to feel that they "own" the decision. (Even more so if a constitutional amendment is passed.) This way, the matter is settled by directly elected representatives. Also, they are not hiding behind precedent or legal texts; their votes reflect their own personal judgment as to what is right (or at least, "right for them"). It ain't perfect, but both sides are likely to feel that they had a fair hearing.

    Conversely, a highly controversial decision by nine unelected justices (often by a 5-4 margin) is practically inviting people to conclude, "Fuck the SC, we were robbed!" So the SC should be used sparingly, as a last resort. Sadly, as Ed has observed, this is very far from being the case.

  16. mangrilla Says:

    Talisker – (I apologize, I don't know how to create the lovely quotations you've formatted above) "So the SC should be used sparingly, as a last resort. Sadly, as Ed has observed, this is very far from being the case."
    True, but in the adversarial system such as ours, that simply won't happen. Perhaps it's time to rethink this whole Marbury-empowered judicial review thing.

  17. mel in oregon Says:

    what is gauling about so many recent sc decisions is the same reason the majority of the public dislikes congress or the executive branch, namely that all three branches are so far from what american citizens want. all three consistently support positions that only help the wealthy or at least the well-to-do. the sc is definitely very biased. scalia & thomas go to koch bros retreats, & thomas's wife is very political, supporting all manner of right-wing bullshit. obama healthcare is a mixed bag, probably the good outweighs the bad, but even this is debateable. but the court's decision on citizen united vastly outweighs any other decisions of the court in the last 30 years, so the net loss for america is terrible. the debate over robert's vote has easily been explained from some pretty bright pundits. as chief justice, he did not want his legacy compared to plessy vs ferguson, or the dred scott case. the problem for roberts is, he is still going to look very bad because of citizen united. he will have no legacy.

  18. circularreasoning Says:

    -"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."-

    My mind goes instantly to the recent interviews with those Romney supporters at his Hamptons fundriaser. I also think about last month's article in The Nation by Chris Hayes
    http://www.thenation.com/article/168265/why-elites-fail

    Our politi-corporate overlords are just overgrown pre-adolescents who never did learn this lesson. The 1% did and does not operate in a world where reality ever says there is any distinction between a "need" and a "want". This lesson is driven home for the rest of us on a daily basis because we must make real choices like, "do I fix that wobbly tire on the car (using the already burdened credit card of course, cuz who has any savings or other money set aside) or just cross my fingers and hope there aren't any fatalities when it does blow?", or "should I splurge and get the $5 Hot-N-Ready pizza for the kids, or follow Dave Ramsey's advice and just keep us on beans and rice for another year?"

    When the hardest choices you have to make in daily life is if you are willing to wait the extra time for the Porsche to come down the car elevator from the 3rd floor, or if you should just go ahead and jump in the Caddy (the dark blue one, not the red one) because it's on the first floor….you just aren't living in the same world. And you certainly aren't learning to accept that sometimes "because I want it" is not reason enough for it to be. The result is that on those rare occassions that a court ruling doesn't go your way, or a Kenyan Usurper infiltrates the White House, your get the kind of spoiled 8 year old tantrum's that surely describe every T-party event I have ever seen or the collosal wast of time and money taking the 33rd "symbolic" vote to repeal letting those common people actually stop dying for the sin of being poor.

  19. Davis X. Machina Says:

    <blockquote.Wonder if I'll live long enough to see liberals in power again?

    I'd settle for living long enough to see liberals in power the first time.

  20. Tim H. Says:

    Sorry Davis, I forgot there were young people in the room. The sad part is, they weren't appreciated while we had them, we never thought the reactionaries would so dominate government. "You don't know what you've got 'til it's gone."

  21. Karlo Says:

    I remember watching Al Gore's concession speech and I had tears in my eyes. I, like many others, had gone to sleep thinking that Florida being called for Gore was probably correct and the country could move forward. Then started the nightmare that ended with a percuriam opinion by the Supreme Court. GD them. But I watched the concession speech and the tears became waterworks when he got to the part you quoted. "My gosh, what a great country we live in, where the rule of law governs and not the rule of men." Guess I'd sorta missed the fact that the percuriam opinion was a piece of crap and the rule of law was actually a political decision favoring the dark lord. But, still, it showed a large amount of belief, by Gore, in the institutions of government and his courage to take it and let the country move forward was admirable.

    Now, I see the pundits of the Party of Hate totally unable to believe in the instruments of government. Law you like found unconstitutional? Hold 33 House votes to repeal it. Don't like the current President? Don't try to heal the country emerging from the deepest depression in 80 years, be obstructionist and block ANY move to increase jobs or apply the levers of government to move the economy forward through infrastructure repair and replacement (and it ain't like we don't need new water pipes, heaven knows). Pundits of the Party of Hate crying out for throwing Chief Justice Roberts off the court – "we bought him, he's ours, why doesn't he vote like we want?"

    Jeez, Louise, people. You can't just take your ball and go home because you lose one. People are suffering out there – kids going hungry and without medical care. Old people dying in the dark of heat exhaustion. Buck up and do something useful instead of just bitching and obstructing and trying to give money to your pals.

    There. I feel better now.

  22. Pete Gaughan Says:

    The original post is very good, tho moreso at prompting thought than finalizing it. But John's "The United States Constitution describes a system of government that is based around compromise and reaching consensus. … But the current political attitudes in the US reject the very idea of compromise. In essence, they reject the very foundations of the system of law as laid out in the constitution." might be the most trenchant political comment I've seen in years. Thank you.

  23. bb in GA Says:

    @Pete quoting earlier poster

    "…they reject the very foundations of the system of law as laid out in the constitution."

    @Ed original post

    "…although tomorrow we'll talk about how they manage to turn this failure into an asset and undermine the efficacy of our government in the process."

    Really, this ain't new…Before the ink was dry on the 13th and 14th amendments and the ex-Confederate, white Democrats got their franchise back the undermining was active and intense.

    The culmination of the effort was the SCOTUS ruling in 1896 (Plessy vs Ferguson) that enshrined "separate but equal" in segregated education in the US and undergirded all of our Jim Crow laws South of the Mason-Dixon. (all run by Democrats – except during the 12 years of 'Reconstruction')

    This lasted until the mid-20th century pretty much intact (1954 Brown vs BoE)

    Again, this ain’t nothing new so don’t weep for our sorry state – I think it’s part of the design

    //bb

  24. Bernard Says:

    the whole premise that the SC would ever be non political is a illogical assumption. just a representation of the forces that own the country at this time. the Elites bought the SC, with all their planning, when they bought the Republican party, as the Goldwater reference demonstrates.

    just waiting to see how far right this Court goes and how "expertly" they defend and excuse their fascist corporate line. Obviously, as far right as possible, even to the point of redefining "rights" that belong to "people/corporations." power for those who use it. and these "people" certainly know how to use it/abuse it.

    the slide to hell is really fast and furious, lol, and the momentum just increases as more of these "decisions" are created.

    watching the Right's "reconstruction" of law and American society is fascinating and extremely frightening. Consolidation of powers, of which we are seeing. Watching the Religious Right control Government policies/enforce their "Christian version" of Sharia law proves the need for taxation of all religious beliefs.

    as Bette Davis said, "Fasten your seat belts, it's going to be a bumpy night". Witnessing this transformation, and outright theft of America, shows we really do live in "interesting times."

  25. JoyfulA Says:

    When I was a kid in the 1950s, our arguments often included "I'm going to take it to the Supreme Court!" I don't know how that expression got started or whether it was national or just my block.

    I can't imagine anyone (other than VSP lawyers) saying that now.

  26. Archery Program Says:

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