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June 25, 2012 12:20 PM The Only Precedent That Seems To Matter: Bush v. Gore

By Ed Kilgore

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 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.

Comments

  • Al Swearengen on June 25, 2012 12:30 PM:

    Hate isn’t something I throw around, but I f*cking despise the 5 out-of-tough a**holes on the Supreme Court. Because they treat We the People people like dogsh*t on the soles of their shoes, the useless corporate whores.

  • Anonymous on June 25, 2012 12:32 PM:

    Watching Scalia rail against the president's executive order on immigration, one can see that these traitors have now decided to rip away the masks and let us all see exactly who and what they are.

    Fallows is right about a coup. That is exactly what Bush v. Gore was: a judicial coup d'etat.

  • stormskies on June 25, 2012 12:33 PM:

    Right. Remember when Bush's former communications director said 'reality is what we say it is' ? That is pretty much what the U.S Supreme Court has become. The law is what we say it is.

  • TCinLA on June 25, 2012 12:33 PM:

    That was me above.

    Al: I totally agree with your sentiment.

  • KarenJG on June 25, 2012 12:36 PM:

    Actually, it was a night in 2000. Dec. 12th to be exact - it's burned into my memory as a day of infamy, the day Democracy actually died in this country.

  • Ron Byers on June 25, 2012 12:36 PM:

    Progressives haven't worked very hard at a counter coup have we? We have pretty much become corporate lite party. With one or two rare exceptions, nobody in power stands for the people.

  • Dean on June 25, 2012 12:44 PM:

    Absurd! Since when is ideology allows to have any role in the judicial role of law? If indeed ideology is the metric for any Justice, that Justice should be impeached. Capitalism, nor Democracy, can survive if there any defects in the evolution of law. Placing chaos into the interpretation of the law will disenchant the masses from every avenue of social stratosphere.

  • jjm on June 25, 2012 12:47 PM:

    Sorry, but when I first tried warning people fifteen or so years ago, after reading about the Federalist Society's agenda to place its members in the Federal Courts (in a Yale publication that laughed about it), people just pooh-poohed me as being alarmist.

    Bush initiated a long-term coup, to be sure, started by his father with the Thomas nomination -- in part to assure the domination of the courts by reactionary Federalists who seem to want to pretend history never happened.

  • bobatkinson on June 25, 2012 12:49 PM:

    Right on KarenJG. Was going to post identical info. A day and decision that will live in infamy for sure.

  • Mitt's Magic Underpants on June 25, 2012 12:49 PM:

    "But Obama didn't do exactly what I wanted when I wanted, so I'm going to pout and stay home!"

  • Varecia on June 25, 2012 12:49 PM:

    Ron, progressives don't have a party! At least the progressives I've known. If progressives can move beyond the level of small bands of former era 'activists' that are long on disgruntlement but short on practical effectiveness and start taking their interests door to door in some kind of resolute and sustained strategy--the way that the established parties do--then we might start to see a shift.

  • Tess on June 25, 2012 12:53 PM:

    Maybe it is time for Dems to run against the Supreme Court. It certainly is a good scare tactic to get the voters off their butts in into the booth. Imagine what another Republican SCOTUS pick will do to this country. I'm thinking we could make a video with nothing but excerpts from "The Road".

  • Grumpy on June 25, 2012 1:03 PM:

    In a parallel universe, the SCOTUS allowed the FL recount to proceed... and Gore still lost, under the method being used. However, the two different vote totals cast doubt on Florida's electoral votes, depriving any candidate of the 270 needed to win, throwing the decision to the U.S. House. Since more state delegations were controlled by Republicans, Bush was still elected. But since the Vice President was selected by the Senate, Joe Lieberman ended up as VP instead of Cheney, so the parallel universe had it marginally better. Yay!

  • Patrick Star on June 25, 2012 1:08 PM:

    Excellent observations,as always, by James Fallows, and Michael Thomaskey (thanks for the heads-up, Ed!). Okay, it's become obvious that the conservative majority of the Supreme Court are partisan hacks, so let's treat them as the political actors that they have chosen to become. They've crossed the line of deserving deference and respect and are now (assuming overturn of ACA) officially fair game for derision and mockery. Hang these smug, sanctimonious assholes around the necks of every Republican politician in the country. Their faces should be on every Dem's political ad (with scary, ominous music, of course!), and on every campaign mailer. We can make them, collectively, the new Willie Horton.

  • Mimikatz on June 25, 2012 1:13 PM:

    It seems like every day it gets worse. Today and last week there are new articles on greater-than-anticipated sea level rise on the northern Atlantic Coadt and CA. Plus the Montana campaign finance and AZ papers decisions, and soon health care. Things are just going down the tubes.

    Perhaps when the Right gets their final victory there won't be much left, as we will be a third world country in serious crisis.

  • martin on June 25, 2012 1:35 PM:

    And anyone who remembers that strange night in 2001 when the Court’s Republican appointees decided to seize the opportunity to choose a president should not be surprised.

    And the Dems caved "for the good of the Country." Gore and the Dems should have fought tooth and nail to challenge the election in the House, just as the Constitution allowed. Even if they lost, they may have grown the spine they lost and continue to function without today. The Republicans are doing this because they can, and they can because the Dems do NOTHING to stop them.

  • DisgustedWithItAll on June 25, 2012 1:38 PM:

    "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 2001 when the Court’s Republican appointees decided to seize the opportunity to choose a president should not be surprised."

    Who in the hell is surprised? How fucking stupid would you have to be to be surprised? When this shit started, who couldn't foresee what the result would be? Oh, wait, I know who couldn't see it. The court watchers couldn't see it. The myopic inside-the-Beltway stooges couldn't see it. The lefty bloggers couldn't see it. Democrats all over couldn't see it. Every time they get punched in the mouth, the precious dears are just completely stunned all over again. None of these bozos could see it. Just like when the bottom fell out with the financial crisis, hardly anybody but those willing to look saw it coming. Krugman, some Post-Keynesians saw it, Schiller, Dean Baker, and a few others saw it, but none of the corrupted, faith-based ideological economists and finance people saw it.

    Morons calling the shots and morons telling the rest of us what the morons are doing.

    No, it's already in danger, and has been for almost 20 years. This has been enabled by a cowardly Democratic party who could never find an issue important enough to draw a line or an issue tedious enough that the wounds resulting from fighting for it weren't too serious to justify fighting. This is a direct result of the people like the 3rd wayers, the Clinton-Wall Street connection, and the cadre of inside-the-Beltway Democratic buffoons who had no fucking clue what was going on. You're part of that Kilgore.

    It's not just in danger; the 20th century is almost surely gone. This is just because of Republicans. It is because of spineless cowardice in the face of obnoxious bullies. All of those co-opted by prima facie stupid conservative economic ideas need to take their place in line along with the Republicans for this fucking disaster. Get in line.

    And our only hope? A clueless, co-opted Obama whose single most standout trait is that of being completely unaware of the consequences of letting those that will kill you off the hook is the only thing standing between the country and The Gilded Age, or 1789. And a gaggle of Democratic strategists who put together last summer debt ceiling fight strategy, and a Democratic message machine that thinks constructing campaign messages should be like writing for Hallmark cards.

    Feeling hopeful?

    It's difficult to figure out who deserves more contempt: the vicious, obnoxious, destructive, heartless Republicans or the whimpering, cowardly, sniveling, shrinking, spineless Democrats. Way to piss it away, Democrats.

  • boatboy_srq on June 25, 2012 1:41 PM:

    I commented earlier on the tendency of the Reichwing Supes, not only to decide actively for their side, but to actively choose not to decide when there's no specific instruction in the Constitution that enables them to make a decision on a case. Deferring to the Constitution for every decision (major or minor), without the context of either judicial precedent or the myriad Congressional actions built on the assumption that the Constitution was to be interpreted and not taken literally, is the surest, shortest way to void not only the Great Society and New Deal, but virtually every building block of industrial and post-industrial society. This SCOTUS seems to look back, not at the pre-Warren court years, but the pre-Jay court years, as if SCOTUS is only a restraint on executive action and not a check to legislative missteps as well.

    One wonders how they decide intellectual property cases involving electronic media, since the digital space didn't exist in 1787.

  • DisgustedWithItAll on June 25, 2012 1:44 PM:

    I meant to add:

    And despite my disgust with Obama's instincts on Wall Street, Geitner, and related and my complete contempt for him on the way he's handled Republicans in general, I'm going to fight like fucking hell to get him re-elected. Because that's the only damn chance this country (and essentially, the world) has.

    And I hope the rest of you do, too.

  • DisgustedWithItAll on June 25, 2012 1:48 PM:

    @boatboy:

    This Supreme Court does it this way:

    - determine what the result needs to be
    - find a rationalization to justify it

    All that other stuff is what those who don't understand power do. The conservatives mean business. They will do what their ideology tells them to do. Because they can. And nothing is going to stop that.

    Will the Democrats ever learn that this is a war, not a debate? My guess they won't learn until after the war is over. It's almost over. Those testosterone shots need to start coming in double doses.

  • Tess on June 25, 2012 1:55 PM:

    @DisgustedWithItAll

    Glad you added that: I meant to add

    I'm with you.

    OMG! My captcha is LIEBERMAN...at least he's going away this year.

  • boatboy_srq on June 25, 2012 2:01 PM:

    @DWIA:

    No argument. I was more interested in the process, and how it informs one's understanding of "strict constructionism". It's also interesting to contemplate how far they'd go without the 13th-27th Amendments limiting their options: this SCOTUS is quite easily visualised as reiterating Dred Scott if doing so would ensure Conservatist hegemony, provided that the Amendments that prevent such a decision were stricken from the Constitution first.

  • SecularAnimist on June 25, 2012 2:06 PM:

    Ron Byers wrote: "Progressives haven't worked very hard at a counter coup have we? We have pretty much become corporate lite party."

    I think you are mistaking "progressives" for "Democrats".

    Unless you are referring to a Progressive Party that I have not heard of.

    There is nothing "progressive" about today's Democratic Party. It is well to the right of the Republican Party of Richard Nixon.

  • SecularAnimist on June 25, 2012 2:13 PM:

    Grumpy wrote: "n a parallel universe, the SCOTUS allowed the FL recount to proceed... and Gore still lost, under the method being used."

    Well, that's a "parallel universe" that has nothing to do with reality, since as subsequent analysis showed, if all the legally-cast ballots had been counted in accordance with long-standing Florida election law, Gore would have won.

    And that was true even after the criminal fraud perpetrated by Jeb Bush and Katherine Harris, who deliberately purged tens of thousands of eligible voters from the rolls by falsely identifying them as "felons".

    If every eligible voter in Florida had actually been permitted to cast a ballot rather than being disenfranchised by that criminal conspiracy, then Gore would have won Florida by tens of thousands of votes.

  • Peter C on June 25, 2012 2:14 PM:

    God bless James Fallows.

    (And that's saying a lot, from an athiest!)

  • joanneinDenver on June 25, 2012 2:15 PM:

    I agree with Martin. Bush v. Gore could not have happened without the weak and final surrender of the Democratic party and candidate. The party should have had the state of Florida blanketed with lawyers at every polling place. Back in the day, in the 60s, that is how it was done. There should have been challenges to everything. Too little, too late.

    The total passivity continues today. Why? I don't understand.

  • Andy Olsen on June 25, 2012 3:11 PM:

    Personally, I think the term "coup" is fine to use. It was used in this stunning piece that was, also, published in The Atlantic, "The Quiet Coup." From 2009:

    "The crash has laid bare many unpleasant truths about the United States. One of the most alarming, says a former chief economist of the International Monetary Fund, is that the finance industry has effectively captured our government—a state of affairs that more typically describes emerging markets, and is at the center of many emerging-market crises. If the IMF’s staff could speak freely about the U.S., it would tell us what it tells all countries in this situation: recovery will fail unless we break the financial oligarchy that is blocking essential reform. And if we are to prevent a true depression, we’re running out of time."

    Another ignored warning.

    http://www.theatlantic.com/magazine/archive/2009/05/the-quiet-coup/7364/

  • wvmcl on June 25, 2012 3:19 PM:

    Of course, you know who really got us into this mess:

    Ralph "no difference between the parties" Nader

  • Skip on June 25, 2012 3:22 PM:

    boatboy_srq,
    Interesting correlation you've hinted at there, that the Republicans treat the Constitution the way they treat the Bible: Holding them up as defense when they want something, then pissing on them when no one is looking.

    Such is faith-based politics. Or political-based faith. But what kind of morality will the Right will be able to stand on after voting a Mormon into the White House. Romney, if he's been paying attention to WA politics at all during his years of campaigning, if he is elected should by all evidence make good use of the same antics the Right has used, by stuffing key agency positions with BYU graduates and catering to the business interests of his own churchy community, using the Right's under-handed tactics...against them.

  • boatboy_srq on June 25, 2012 3:43 PM:

    @Skip:

    I didn't mean to hint at it: I meant to state it more clearly. Wingnuts of "faith" (in whatever) use their holy writ for their own ends, adhering or discarding as necessary: one look at the Crusades, the Reformation, the Inquisition, the Albigensian Heresy, Leninism, neoliberalism, etc etc is evidence enough. The observation itself comes from two places:
    1) Listening to FundiEvangelist/Teahadist quote (and misquote) the Original Articles and the Bill of Rights in the same tones they use when they're dredging up some obscure part of Leviticus, Proverbs or Kings with which to whip Those Less Worthy Than They.
    2) I spent four years studying History, Politics and Religion with the Southern Baptists, and another year studying History and Politics with raving agnostic/atheist socialists. You learn to see the correlations and identify subtext pretty quickly with that kind of education.

    Romney... if he is elected should by all evidence make good use of the same antics the Right has used... using the Right's under-handed tactics...against them.

    I'll agree that Romney is likely to use these tactics against the conventional neocon/FundiEvangelist/Teahadist set. That does not necessarily mean the result will be good for a) Progressives, b) the US as a whole, or c) the planet as a whole. The only group that will be predictably aided are the 1% - and specifically the Mormon portion of the 1%. That Romney would pour sauce on the ganders doesn't make it any more palatable than when it's ladled on the geese.

  • Peter C on June 25, 2012 3:57 PM:

    One key element of the 'coup' was the hijacking of the Help America Vote Act to 'solve' the hanging-chad problem and put paperless DRE machines in place across the country. That effort paid dividends in 2004 in Ohio and perhaps in 2010 with the 'tea bagger revolution'.

    Too many voting machines across the country make no actual record of each vote. They have nothing which can be audited for accuracy. They have nothing which can be recounted. DRE machines were purchased and implemented in super-blue Essex County in New Jersy (home of Newark) over the unanimous opposition of all the citizens who attended the country free-holder meeting which approved their purchase. The machines here in Texas are paperless too.

    Just as the paradigm in the judicary has changed (from a system where honorable justices made decisions based upon the Law to a system where hack justices make rulings to based upon their partisan ideology), we must realize that the paradigm in the administration of elections has changed too. Katherine Harris, Kenneth Blackwell, Rick Scott, and now Ken Bennet (the birther in charge of elections in Arizona) all have shown that they are completely willing to put their thumb on the scale in order to make sure that their side wins the election.

    We've got to watch the elections, people. It's too important a matter to entrust to others. If we win, we've got to make verifiable voting a national priority or soon, it won't matter.

  • SecularAnimist on June 25, 2012 4:10 PM:

    wvmcl wrote: "Of course, you know who really got us into this mess: Ralph 'no difference between the parties' Nader"

    The current governor of Florida is counting on you to blame Ralph Nader for the theft of this year's election with exactly the same fraudulent voter-purge scheme that Jeb Bush and Katherine Harris used to steal Florida's election in 2000.

  • c u n d gulag on June 25, 2012 5:09 PM:

    Something tells me, that if it's another really close election in November of 2012, there'll be another "other" precedent, where the SC says, "Ok - just this ONE OTHER TIME, we'll make the decision...

    We are well and truly fecked if Mittens wins.

  • C00p on June 25, 2012 10:58 PM:

    Another way to look at it is this: we are exactly what our founding "fathers" intended, a mask of democracy hiding the face beneath: all power in the hands of white property owning men.