I understand where Jedediah Purdy is coming from when he criticizes the Supreme Court as an anti-democratic institution, but I think Purdy is wrong about his most important point. If there is one strength to the Court it is precisely its ability to project authority. They do this effectively, which explains why they are by far the most respected branch of government. They accomplish this in part by maintaining a degree of Delphic mystery to their institution, and in part through pomp and circumstance.
We should not take it for granted that this country didn’t fall into violence when the Bush/Gore election ended in what was essentially a tie. You can look at other countries like Ukraine or Egypt where there is no corresponding civil authority with the credibility to arbitrate who should be in power. It was important that Gore accepted what was essentially an unjust decision, but it was only because the people respected the Court that they followed their leader and stood down.
More often than not, the conservative Court rules against my beliefs and values, but I believe it’s important that we have an authority that has the final word and that that institution be respected. Efforts to demystify the Court and discredit it are likely to result not in the reforms that Purdy contemplates, but in a loss of faith in the last governmental branch that has some healthy support from the people.
Societies can hold together or fly apart, depending on whether or not consent among the governed can be maintained. With Congress split the way it is, and our country sorting itself into like-minded communities that disagree with each other with increasing vehemence, we can’t afford to undermine that consent any further.
There has to be a final authority. The Supreme Court is ours.
Being as how a lot of people are not clear on the difference between a democracy and a republic, I can see how this might be confusing. That doesn’t mean it’s all right to be confused; in fact, consequences of almost unlimited badness could flow from being confused on that point. (…aaaand cue a quick look around.)
“They do this effectively, which explains why they are by far the most respected branch of government.”
I would say that without a doubt the Supreme Court has lost a sizable amount of it’s “respectability” as you call it. I feel an argument can easily be made that the Roberts Supreme court has made numerous judicial decisions that are biased. There has also been numerous cases that has been ruled upon when one or more of the “Justices” should of not ruled on.
These actions do not in my mind represent a “Supreme” anything except maybe corruption that is.
The Court has lost a lot of credibility and it’s their own fault. But that doesn’t mean that exposing it as an illegitimate refuge for elitist lawyers and stripping it of its pomp and mystery are going to make it more credible.
Put it this way: we want the Supreme Court to have authority even if it doesn’t deserve it and hasn’t earned it. Especially now, because the people are giving Congress single-digit approval ratings.
Put it this way: we want the Supreme Court to have authority even if it doesn’t deserve it and hasn’t earned it. Especially now, because the people are giving Congress single-digit approval ratings.
But it doesn’t serve it, and rarely ever has. It almost always, and is especially now, just an arm of the Chamber of Commerce.
If I understand correctly, what Booman means is that the legitimacy of the Supreme Court, and our respect for it, lies not in its popularity but in its authority. And this is as it should be. That authority derives from the Constitution and is one of the pillars of our system of government. Therefore we want the Court to have and to deserve that authority, so that even if a decision does not please us, we can say at least that it had a certain degree of justice.
Precisely because the Court’s authority does not rest on votes or popularity, it earns and maintains it by the wisdom and lack of bias of its deliberations and decisions.
So when the Court shows bias, to the degree that they consistently fly in the face of juridical wisdom and long-established precedent, seeking a political end through legal reasoning that is just a rationalization to arrive at that decision, the Court loses our respect and therefore its legitimacy.
In such cases even many conservative judges are shocked at the arbitrary hairsplitting and Rube-Goldberg contrivances of the majority. Of course the court still has its legal authority, but through these clownish decisions it loses its moral authority and to a significant degree even its respect within the legal profession.
This has to have repercussions in the other two branches. They cannot do what the court can do, but it is in the nature of our system of checks and balances that they will try to counteract its worst decisions, such as Citizens United and similar.
But Congress, at least past congresses, bear a lot of responsibility for the present situation, which goes back to the fights over Bork and Anita Hill. It was in Congress that he court became overly politicized. Bork would have been a terrible justice, and Thomas is a terrible justice, but the extreme politicization of the court was a direct consequence of congressional maneuvering.
I really don’t know what could have been done to prevent this — if anybody has any ideas, I’d like to hear them. This is still as much as a problem as ever, as it is assumed that SC nominations and appointments are going to be the result of political calculus on both sides, and little else.
It seems to me that the only way to defuse it is to nominate and appoint learned, unpolitical justices, assuming there still are any. But I understand the urge to try to guarantee a remedy to the gross distortions that have already been introduced by this Federalist Society-controlled Court.
But when you talk about democracy, the ultra- conservatives in this political fight do not operate by democracy, but by money, gerrymandering, and anything else they can get away with (e.g. Rick Scott, Scott Walker, Chris Christie). As far as democracy, they represent not the majority, but the 27% and the 1%.
But Congress, at least past congresses, bear a lot of responsibility for the present situation, which goes back to the fights over Bork and Anita Hill.
Why are you letting the presidency, specifically George Sr. off? He nominated Scalia, Thomas and Bork, right?
I’m not letting them off, I just didn’t mention it because that’s exactly the kind of nominees I would have expected from Bush Sr. I wouldn’t necessarily comfirmation of them from a Democrat-controlled congress. Checks and balances, you know. In fact, they did not confirm Bork, but apparently that blew their political capital.
I would say that the “liberal” justices fit that description pretty well. That they appear to lean left is merely because they aren’t judicial activists like the conservatives are.
I would argue that a big part of the problem now is the way nomination hearings are run with the nominees generally refusing to answer any substantive questions. I know that’s how Ginsberg got through, but I think it was a terrible precedent anyway. With any luck, the next nominee will spark a serious and substantive discussion about his or her judicial philosophy and what it really means to make rulings from the court.
Good point.
>>we want the Supreme Court to have authority even if it doesn’t deserve it
who you calling “we”?
That’s also true of the Boehner Congress, but that’s not the point. Yes, these people are damaging the institutional authority of the Supreme Court and of Congress, but the question is how to respond. It’s all too easy to fall into the old libertarian bait-and-switch. It’s easy to get everyone to agree that our government sucks, but do we want to reclaim it our do we want to dismantle it?
I take your point, but what happens when the Supreme Court undermines its own legitimacy by either producing ridiculous rulings or being nakedly partisan?
I take your point, but what happens when the Supreme Court undermines its own legitimacy by either producing ridiculous rulings or being nakedly partisan?
Haven’t the Supremes done exactly that during the past 15 years?
Precisely my point.
The court is anti democratic? Well it is, at least in part, supposed to be. The court is supposed to make sure the mob of the majority don’t trample on the law, the constitution or the rights of the minority.
But when they think the constitution was handed to our founding fathers direct from God can be applied literally for every foreseeable issue of the day without interpretation or application of common sense, then we have a problem.
The founders didn’t foresee the formation of the EPA but that shouldn’t matter.
We have the most consistently partisan Supreme Court in 100 years; their gratuitous intervention to stop the vote count in Florida is a prime example. That has been followed up by the rulings in Citizens United and other cases that go beyond being philosophically aligned with the Republican Party but institutionally advantage the Republican Party in non-democratic ways.
There was less of a danger of civil war from Bush v. Gore in 2000 than there would be today. I maintain that the Supreme Court’s decision in Bush v. Gore gave Republicans the idea that they could take power through extra-constitutional means legitimized by a partisan court.
More and more it seems that we are living outside of constitutional rule and in the realm of the arbitrary rule of raw power.
And Democrats have greased the skids instead of opposing that trend.
The election result was ‘essentially a tie’, you say. That seems reasonable. But Bush became president instead of Gore. How can you call that a tie? Maybe they should have split the office. The votes could have been counted and Gore would have gone to the White House. Nevertheless the outcome was a tie. The Supreme Court rigged the procedure in Bush’s favor. There was no reason for this because the U.S. was in no way going to descend into the chaos of say an Egypt. What a peculiar comparison. The Supreme Court put an end to the counting of votes in Florida. And that’s an authority to be respected? In your book, not mine.
I don’t respect their ruling in Bush v. Gore. But don’t kid yourself that you live in a country where we will always accept the outcome of elections. When elections are close, we need an arbiter that people will respect. The Bush v. Gore ruling damaged the Supreme Court’s standing but not fatally.
Really, the most salient thing about the 2000 election is that Gore/Lieberman managed to convince so many people that the outcome didn’t really matter very much. Times are different now.
But the Supreme Court did not respect the outcome of the election. It installed Bush. Democrats seems always to think everyone has good intentions. Didn’t we get two more rightwingers on the court in Bush’s term, including the the chief Roberts?
As soon as the SCOTUS ‘flips’, and becomes a court with a majority appointed by democrats the right wing will begin to tear it down. They will not stop until all it’s decisions are looked at with distrust.
The same protestors you see aimed at Clinton and Obama will be aimed at the SCOTUS, they will pick out a particular justice for cleansing.
It’s what they do.
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We had a mechanism for resolving the Stolen Election of 2000, it was the Supreme Court of the state (Florida) that was having a recount, a recount that (unprecedentedly) would decide the election, given our absurd anti-democratic mechanism of the electoral college. (In any other democratic republic the Florida totals would have been meaningless since Gore had something like three quarter of a million more votes than Bush nationwide.
But 5 Repub justices just “had” to inject the Supreme Court into the matter, under the assumption that the nation (i.e. the Red States) wouldn’t accept the result otherwise–and also to install a Repub prez to keep Repub control of the Court, of course. This violated all the decades of lying “conservative” yapping about judicial “restraint” and federalism and respecting state judiciaries, thus demonstrating their intellectual dishonesty and revealing the actual motives and intent of “conservative” judges.
We do need a final judicial arbiter to resolve legal disputes and protect the rights of despised and powerless minorities from the excesses of majorities. I take it that the country wants to retain judicial review of legislative enactments—in my day “conservatives” argued that such review was not envisioned by the Founders and was wholly made up by John Marshall, The Great Chief Justice, in 1805. We don’t seem to hear this argument from “conservatives” any more…
The biggest problem(s) with the Court today is that five conservative males do not follow existing precedents and think that corporations are powerless minorities that must be protected from regulation–a view that had been thought decisively repudiated with the New Deal cases. So we are back precisely to 1935 and constitutional Lochnerism. So the American “conservative” judge is happy to repeal the main foundation of jurisprudence which kept the Court out of overturning much federal legislation. Now Roberts’ Repubs are back in the game of routinely throwing out national legislation, and won’t be stopping any time soon, as long as lib’rul legislation gets enacted.
Attacking partisan decisions, and making clear the hypocrisy of conservative justices, and unmasking the tendentious and results-oriented “conservative” reasoning, and revealing the current majority of conservative males as hyper-partisan isn’t attacking “the Court” or undermining its constitutional authority—it’s attacking the five conservative male activists who are posing as justices and who are using the Court to enact a “conservative” agenda, one that isn’t based in the constitution or existing precedent.
Well said sir
Republicans and conservatives in general do not actually have values – they have excuses of convenience.
Judicial Activism is what a “liberal” Supreme Court does.
Originalism is what a “conservative” Supreme Court does.
States Rights’ are one of the most important concepts of Federalism. Until it isn’t, and they need to stop a “liberal” state supreme court.
Ultimately, the Supreme Court is the final arbiter of extant legislation. Nothing stops a (functioning) Congress and a decent President from overturning BS decisions like Citizens United. Which is why mid-term apathy of Democratic voters is so tragic.
It wasn’t a “tie,” Booman. It was a crude fix. Further, had the citizens of the U.S. arisen at that point…which of course would have required them to awaken from their totally hypnomedia controlled, eyes-wide-shut sleep, something that is not about to happen even 14 years later…and torn the joint up, maybe we would be better off now. Instead they swallowed the lies whole, turned over on their TV couches and went right back to sleep. The ensuing 14 years have been a total disaster on every level except for the .01%. I’d prefer it otherwise.
You?
I think not.
So it goes.
AG
The court has never really been a friend to the people; why should it be respected?
The only reason it gets a modicum of respect these days and a few decades before is because of the Warren and Burger courts which in a rare anomaly expanded civil liberties and rights of the people. For most of its history, it’s been shit.