Summary: The reactions to the Court’s ruling on Obamacare and same sex marriage divide on predictable partisan grounds, as Americans seek what they want. We care little about Constitutional procedure and less about the work of making the machinery work as the Founders intended. It’s the thinking typical of political regimes’ last days, when belief has gone and people just follow the forms. {We’re back to one post per day, as I consider winding down this project.}
The Supreme Court has legalized same-sex marriages. David Fontana at Slate gives some of the typical liberal cheering for the Court’s decision on same-sex marriages: “The Justices’ Justice” — “For years we feared the consequences of pushing social progress through the courts. Obergefell v. Hodges will prove we shouldn’t.” I suspect he’s cheering prematurely.
For a clearer example of thinking on the Left see Matthew Yglesias’ reaction, exultant and quite daft (red emphasis added)…
What’s more, it’s a huge analytic mistake to assume that striking down some law is an anti-majoritarian action. The way the United States government works is that change is very hard. Given the current state of gridlock in Washington, it’s pretty clear that neither a gay marriage legalization bill nor a gay marriage illegalization bill could pass. On marriage equality, like on virtually every other issue, the status quo is simply likely to prevail. Into the breach steps the Supreme Court — in this case, on the side of the majority according to polls.
All in all, I think the American system of checks-and-balances has a lot of flaws. But unelected judges invalidating unjust laws that a majority of the public wants invalidated is basically the system working at its best.
Yglesias cheers the new order when unelected Justices do our will, guided by polls. Self-government by couch potatoes, without politics, run by black-robed gurus!
Conservatives object to this decision (and that allowing Obamacare) in the traditional fashion of those unhappy with court decisions, talking about the court’s pretensions to supremacy eroding its legitimacy, destabilizing the balance between the three branches, and a threat to representative government. It’s the latest chapter of an argument going back to the 19th century (and the ruling about Dred Scott, the mother of judicial activist, in 1857).
A more interesting aspect of the Left’s cheering is their blindness to a major trend of our age. The Right has been gaining power at all levels of government since the late 1970s, including the courts. Conservative Justices are not shy about using their power, as we have seen from their rollback of the Voting Rights Act, campaign finance regulation, and a dozen other issues. It’s a bad time for the Left to be cheering the discretionary exercise of judicial power.
The Left has had its turn running an activist court. Depending on the next few elections, now the Right might get a turn at the controls. Soon liberals like Yglesias might be yelling “STOP” to the courts, repeating arguments the Right has made since the Warren Court.
These vignettes of the Left and Right trading places show the naked tribalism of our politics, and that neither side has much concern for the Constitutional machinery. That’s our responsibility. If we don’t care, nobody cares, and the machinery eventually will break. We must care about how the law is made as much or more than its text.
The Court’s weak foundation
The concerns about the Court’s activism eroding its legitimacy might prove correct. Gallup’s data shows that American’s confidence in the Supreme Court varied from 40% to 56% between 1973 and 2006. Since then it’s run between 30% and 39%. It was 30% in 2014, and 32% in June 2015 — the lowest levels of this Gallup poll’s 42 year long record.
What happens if it breaks down into the 20%’s? The Courts lack the inherent legitimacy of Congress and the Presidency produced by elections. The other branches might begin to pushback against judicial over-reaching. Future presidents might reuse Andrew Jackson’s (apocryphal) words: the Court has made its decision, now let them enforce it.
The big picture
Laughter from Europe greeted the Constitution’s birth, from their confidence that a regime could not endure based on its people’s love of liberty and their self-disciplined allegiance to mutually-agreed upon rules. Perhaps they were right.
Respect for the words of the Constitution, for the specific consent of the people which empowered it, for the love of the Constitution in the people’s hearts … all of these things fade away, day by day. Unless we change course, eventually the American Constitution will become a minor procedural document, a guidebook for the jousts elites hold to determine their relative power in the new regime.
Our Constitution is just an idea which we inherited from the Founders. We created it, and its death will give us the experience to do better with the next version. The Constitution is not America. We are America. We are strong because of our ability to act together, to produce and follow leaders. We are strong due to our openness to other cultures and ability to assimilate their best aspects. We are strong due to our ability to adapt to new circumstances, to roll with defeat and carry on.
We will be what we want to be. The coming years will reveal what that is.
For More Information
Recommended: Waiting for SCOTUS” by Rob Hunter at Jacobin — “By fixating on the Supreme Court, liberals have inherited the framers’ skepticism of popular sovereignty and mass politics.”
If you liked this post, like us on Facebook and follow us on Twitter. See all posts about our Courts, and especially these…
- Forecast: Death of the American Constitution
- Another American judge weakens the Republic’s foundation.
- Civil rights just took a step forward, the slow hard way. The right way.
- Should we thank the Court as it rescues us from our bad laws? Or just bow?
- The Court overturns two laws passed by Congress. Everybody cheers!
See all posts about the American family, and especially these…
- What’s the future of the family in America? How will that change our government?
- Do we want to bring back traditional marriage? What is traditional marriage?
- Men are “going Galt”. Marriage is dying. Will society survive?
Learned Hand criticized Brown v Board of Education because he thought it broke judicial precedent; while Roe v. Wade has long been criticized as a “liberal Lockner.”
This refers to Lockner v. New York, which, in 1896, began an era of conservative judicial activism that lasted until 1936.
There is nothing new about judicial activism and – absent some sort of external constraint – nothing that can be done about it.
Duncan,
Yes, as I said: “It’s the latest chapter of an argument going back to the 19th century.” The poster child for judicial activism was Dred Scott in 1857.
Another example of American activists’ indifference to the Constitution
Opening of “The Immigration Secessionists” by Rich Lowry at Politico, 8 July 2015:
The obvious equivalent on the Right is their decades of protests about judicial activism — crying for respect for precedent — all down the memory hole as they gain a working majority on the Court and begin their own cycle of activism.
“Civil Disobedience in the Disunited States of America” By Patrick J. Buchanan • 10 July 2015.
“The other branches might begin to pushback against judicial over-reaching. Future presidents might reuse Andrew Jackson’s (apocryphal) words: the Court has made its decision, now let them enforce it.”
Might be sooner than you think.
—
Grave words in general, hope you can find the energy to continue to pursue this project in some form. It is necessary.
PF Khans
PFK,
Thanks for the link to that provocative article by Buchanan. It goes to the heart of this question. However, I think we can see this a bit more clearly than Pat by not dumping all civil disobedience into one pile.
(a) Civil disobedience as protest, and matters of conscience — It’s a core part of western culture going back a thousand years. A modest amount probably keeps the system vital, and its well-justified in both aspects of Christian theology & practice and western secular thoughts (e..g, Thoreu’s “Civil Disobedience“, 1849).
(b) Succession, nullification, the regime’s loss of legitimacy — Too much of a good thing is hazardous, eventually fatal. Whether booze or water or sanctimony, things must be kept in balance or the system becomes disrupted. As engineers say, quantity has a quality all its own. Too much eventually become something different in its effects.
The Confidence numbers for Congress & the press suggest a political regime in trouble. We should worry if those of the Court similarly break down. That would leave the military and police as not only the only highly respected, but along with the Presidency the only respected political institutions. We don’t need Nostradamus to know what comes next.
PF Khans,
About the FM website — I’ve gotten several emails this morning in response to my brief note in today’s post. Here’s how I’ve replied.
Thank you for the support, it is greatly appreciated.
I fear the FM website project rests on a flawed concept. I thought there was an audience for a neutral perspective, looking critically at both Left and Right — seeing the common elements of their behavior, and seeking perspectives that can unite us. I no longer believe that is the case. All this content has done is alienate both tribes. The middle is too small to support this kind of project.
The result is that the FM website’s long-form, heavily documented articles too seldom go viral. Doing so is essential for success on the web. In November we increased the publication rate from 6 per week to 12-13, converted to a better template, optimized for Google, and increased the quality. After small pop in traffic, in April, May, and June we had less traffic than a year ago. Donations have dropped to a trickle.
So I have cut the publication rate down to 7, and will evaluate what that does to traffic and donations. If it drops traffic proportionately, I’ll call the project a failure and convert to a still lower level of publication (2-3 per week?), the typical vantity-press type blog.
Again, thank you for your support. If you would like the project to continue, please help out. Publicize on Reddit and Facebook, comments on other websites, and donations. All help.
Fabius Maximus,
“However, I think we can see this a bit more clearly than Pat by not dumping all civil disobedience into one pile.”
Agreed.
“The Confidence numbers for Congress & the press suggest a political regime in trouble. We should worry if those of the Court similarly break down. That would leave the military and police as not only the only highly respected, but along with the Presidency the only respected political institutions. We don’t need Nostradamus to know what comes next.”
I think it’s amazing that this is the case given the high degree of failure amongst our military/security classes.
PFK,
As one who has responded to roughly 10,000 comments about our wars, I strongly believe that only a small fraction of people see our wars as failures.
It’s like defending the city from dragons. Do you see any? Yes, I’ve done a great job.
Plus there is the intense and sustained propaganda campaign by the massive defense industry and our largest government agency, aided by a network of “think tanks” (making sure we don’t think) and smart journalists (it’s bad business to go against the tide).
Fabius Maximus,
“I fear the FM website project rests on a flawed concept. I thought there was an audience for a neutral perspective, looking critically at both Left and Right — seeing the common elements of their behavior, and seeking perspectives that can unite us. I no longer believe that is the case. All this content has done is alienate both tribes. The middle is too small to support this kind of project.”
That may be the case, but I hope that Fabius Maximus continues in some form. The middle exists and needs encouragement. I don’t know that the Internet, as it is currently established, is good for anything other than “the Roman Mob” writ large. It’s set up for you to react and vent emotionally and not contemplate serious problems.
Regardless, your content seems necessary to me; I consistently point others here because your message is truthful and an appropriate antidote to the broader, more complex challenges that the US faces. Wish I could help more.
PF Khans
Fabius Maximus,
“As one who has responded to roughly 10,000 comments about our wars, I strongly believe that only a small fraction of people see our wars as failures.”
I agree, it’s just amazing that we’re that of touch with reality. Once in touch with reality, though, it just seems so obviously mad.
PF Khans
PFK,
As I and others have written, the military and its allies crushed the military reform movement at the moment of its greatest triumph — correctly predicting the outcome of our wars. This is the essential — and too seldom repeated — insight. The reformers were driven from the field, while those who were consistently wrong dominate our editorial pages and the institutions guiding our wars. Any reform movement in America should study and learn from this conflict. It says so much about us.
I think there is a huge middle but it is largely apathetic. Only awakening for presidential elections, and probably not too interested in really learning about the issues. Just choosing the one with the best campaign ads.
dprof,
See this afternoon’s post for more about this, agreeing with your view.
The middle, the center, that abtract place that doesnt exist,
except in Disney Movies
The middle, the center of what?
Is the center now a subtle way of saying “Im special”?
Im objective?
Im not biased?
Im independent?
Is the center a new third snobbery utopian position?
Is the center the place of the people that realize there is no left nor right,
but cant tell their audience right in the face “you are stupid”?
What is the center exactly?
Is it a real place or a carte blanche to lean right or left when you please?
Again, the middle, the center,
OF WHAT?
what does that mean?
FM, I hope you can continue this website in some fashion because it mentions issues not covered by the conventional “left” or “right”.
Part of the problem here is that politics is multidimensional. The old definition ( economic left) between left and right was between those who wanted to heap up the wealth and those who wanted to spread it around more evenly. The newer definition (social left) is mostly cultural (global warming enthusiasts, pro gay rights, affirmative action, open immigration, pro abortion, feminist etc.).
Finally, you could continue the discussion of other websites like the “Orange Satan” .
Social,
It’s just a function of the audience. People consider it worthwhile, or not.
“issues not covered by the conventional “left” or “right”.”
Yes, that’s the problem. Building an audience for a non-conventional perspective is difficult.
“Yes, that’s the problem. Building an audience for a non-conventional perspective is difficult.”
Yes, thats difficult, but even more difficult is to keep that audience without interpelating it
“Waiting for SCOTUS” by Rob Hunter at Jacobin — “By fixating on the Supreme Court, liberals have inherited the framers’ skepticism of popular sovereignty and mass politics.”
Jason,
Thank you for posting this link (I’ve added full citation info to it for other readers). It’s perfect.
Jacobin should be on the reading list of everybody interested in political reform.
Jason,
I’ve added this article to the For More Information section of the post.
What a load of nonsense. So anything you don’t agree with is “judicial activism”. Got it. Negative options for whining about “the left”. Is everyone on Obamacare who didn’t have insurance “the left”. Are all gay people “the left”. This is by far the most foolish article I have seen here and that’s saying something.
Darwin,
Wow, quite the reading FAIL. I suggest you try replying to direct quotes, so that your comments have some relevance to the actual post.
“So anything you don’t agree with is “judicial activism”.
First, for 150 years people have referred to active Supreme Court decisions as judicial activism. Second, I use it in an ideologically neutral sense — it’s something both sides do when they have control of the Court.
“Is everyone on Obamacare who didn’t have insurance “the left”.”
Nothing in this post refers to the people affected by Obamacare. It refers to the politically active people fighting for or against it. Do you really believe this is not a politically polarized issue? If so, a host of public opinion polls disagree with you.
“Are all gay people “the left”.”
Ditto as above.
Darwin,
I’m not the only one calling the current court an “activist”. Justice Ruth Ginsburg: the current Supreme Court is “one of the most activist courts in history.”
Also Gallup is and always has been a Republican poll machine and Pat Buchanan is a windbag as well as nuts.
Darwin,
Can you provide some cites saying that Gallup has a strong GOP-bias? First I’ve seen mention of that. As for Buchanan, I disagree with you. He’s no “windbag” (i.e., person who talks at length but says little). His writings are intelligent and well-expressed.
Sometimes he says things with which I agree. As with this article. His articles opposing our post-9/11 wars were quite good, and too-rarely seen on the Right. Any reform movement will, I suspect, have to find common ground with some on the Right, so we have to be alert to such things.
His values are on the whole those of a right-wing extremist, and far from mine (e.g., see here and here).
The center of the issue here is this.
0)What to do when Democracy doesnt work to my interests?
1)Should the Judiciary Power be democratized?
2)Is democracy good for my interests?
3) Is Democracy inherently good for all?
Normandy,
Those are all important questions. But, as usual, I focus on narrower and more operational issues.
This is a plea for us to break free of our narrow tribalistic perspectives that make us so easy to manipulate. Be aware of hypocrisy in our tribe’s leaders. Think not just of the policies we want, but how they’re implemented. Be responsible for the system, as the crew is for a ship — don’t be a passenger who wants to get as much as possible in goods and services for his fare.
“This is a plea for us to break free of our narrow tribalistic perspectives that make us so easy to manipulate. Be aware of hypocrisy in our tribe’s leaders. Think not just of the policies we want, but how they’re implemented. Be responsible for the system, as the crew is for a ship ”
This really ressonates for me, it has the power to communicate, it has power in it