The Supreme Court
by tristero
Vamping for a moment on Digby's recent post, I'd like to focus on part of Digby's excerpt from Jack Balkin:No matter whether the Supreme Court is conservative or liberal ideologically, it tends to be conservative institutionally. That is, it does not get behind a proposed constitutional revolution unless it is quite clear that the country is also behind it and demonstrates this support over a sustained period of time. Until that proof is made, the Court tends to resist implementation, or temporize, or a bit of both.
This is largely what happened between 2004 and 2008.
Perhaps that is so. I'd certainly like to think it is so. But, in fact, the way I see 2004-2008 is as a holding action against the extremists nominated by Bush and other Republican presidents, including Bush's father. Last weeks decision restoring habeas happened with the slimmest of margins.
In short, I have no doubt that regardless of where the country as a whole is in 2009, a President McCain would nominate Supreme Court judges who would be in every way, shape, and form the ideological and intellectual clones of Scalia, Thomas, Alito, and Roberts. Roe would go, of course. But so would much of what we consider settled American law towards free speech, separation of church and state, civil rights, labor rights, and the rights of citizens vs. corporations. Such a Supreme Court would hardly do the bidding of the country, only of their far right political cronies.
As much as I would like to believe the Bush revolution has failed, I really don't think a 5-4 decision restoring the Magna Carta counts as evidence, or any of the other victories for America that occurred with the same or similar margins. Jack obviously knows more about the worldview of the Supreme Court than I ever will. But I wonder whether in this case his analysis may be missing the forest for the trees.
One final point. While I am optimistic about the chances for an Obama victory, and of a rollback of rightwing extremism in Congress, I am very worried about the upcoming 4 to 8 years. The damage Bush, et al, has done to what I remember America was like is more than incalculable: it simply defies one's imagination in its breathtaking, and utterly catastrophic, comprehensiveness. Think of all the awful judges he's appointed, and all the incompetent ideologues and religious fanatics now in the permanent government. Think of our standing in the world, which will continue to have enormous impact on our economy. Think of...well, you get the picture.
As I see it, at best, Bush's revolution hasn't yet failed. It has been slowed. Please don't misunderstand. Of course, nearly all of Bush's policies have failed .* But the revolution - the radical transformation of American government and society - lives on. It will be up to Obama (hopefully), the next Congress (hopefully), and the newer media (most assuredly) to work, first to halt the Bush revolution and then bring the country's institutions back to their senses. Similarly with cultural priorities. To say that will take a lot of hard, difficult work is to utter quite an understatement.
The future for this country is not a yellow brick road strewn with roses, the failure of the Bush revolution behind us. Rather we are in a quagmire, not only in Iraq and Afghanistan, but politically, legally, and culturally. It will take a tremendous effort to get out of the ditch Bush (and Bush I, and Reagan, and Nixon) dug for us. It can be done, I think.
Step one: Elect Obama.
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*The "nearly" is just a pro forma hedge: I can't think of one successful Bush policy, but there may be one somewhere.