The Only Precedent That Seems To Matter: Bush v. Gore

Nobody would much describe Monthly alumnus and long-time Atlantic writer James Fallows as a firebrand. But he does have a sense of historical perspective. Over the weekend, mulling a probable Supreme Court action to invalidate some or all of the Affordable Care Act, Fallows put together a stunningly brief summary of how we came to this point:

Pick a country and describe a sequence in which:

* First, the presidential election is decided by five people, who don’t even try to explain their choice in normal legal terms.

* Then the beneficiary of that decision appoints the next two members of the court, who present themselves for consideration as restrained, humble figures who care only about law rather than ideology.

* Once on the bench, for life, those two actively second-guess and re-do existing law, to advance the interests of the party that appointed them.

* Meanwhile their party’s representatives in the Senate abuse procedural rules to an extent never previously seen to block legislation — and appointments, especially to the courts.

* And, when a major piece of legislation gets through, the party’s majority on the Supreme Court prepares to negate it — even though the details of the plan were originally Republican proposals and even though the party’s presidential nominee endorsed these concepts only a few years ago.

How would you describe a democracy where power was being shifted that way?

Fallows answers his own question by using a term–“long-term coup”–that he later downgrades to “radical change.” That’s appropriate, since “coup” implies tanks in the street rather than black-robed ideological cheerleaders. But it’s becoming more obvious each day that the judicial counter-revolutionaries of the Supreme Court don’t need the crisis atmosphere that they used to justify Bush v. Gore to continue its legacy. Indeed, it seems to have become the only precedent the majority reliably respects. Maybe they will surprise us all on Thursday and step back from the brink. But without question, if another seat on the Court falls their way, the constitutional substructure of every 20th century social accomplishment from the New Deal to the Civil Rights Act to the Clean Air Act to the right to an abortion is in immediate danger. And anyone who remembers that strange night in 2000 when the Court’s Republican appointees decided to seize the opportunity to choose a president should not be surprised.

Ed Kilgore

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.