'A Conservative Coup d'Etat'

How do our current political struggles look from outside? Here is a note from a reader in Holland, in response to The Hill's (never corrected) headline about the 51-47 "defeat" of a bill in the Senate:

The reader says:

I really think this is much more important than many people realise.

What this headline "Senate defeats Democrats' measure to kill off 'Big Oil' tax breaks, 51-47" demonstrates once again, and the news coming out of the PPACA Supreme Court hearings this week also shows, is that we are witnessing what is effectively a conservative coup d'état.

The Right holds the majority in the House and uses it, as is morally their right. But in the Senate we see the minority filibustering any legislation emanating from the majority, regardless of how conservative that proposal is fundamentally. It strikes me as nothing more than a scorched earth policy, and profoundly undemocratic. This is not a loyal opposition; it is a rejection of the legitimacy of the elected majority.

And the reporting from the Supreme Court has been profoundly shocking - with conservative justices spouting tea party/talk radio talking points about broccoli and cell-phone mandates, and non-existent Cornhusker Kickbacks. Scalia's 'originalism' is being demonstrated to be fundamentally hollow and partisan.

I am not an American and do not live in the US. But what is happening in the world's most important and powerful democracy is shocking and frightening in the absolute, and does concern the rest of the world.

I am optimistic by nature, and when it comes to America I have long been in the "resilience-ism" rather than the "decline-ism" camp. From what I've seen around the world I know that every society has problems, and few have the advantages America still does. From what I have learned of American history -- and lived through! -- I realize that it's normal rather than exceptional for people to think that things are falling apart. When it comes to governing institutions, I also know that for much of its history -- say, the century from Dred Scott roughly until the 9-0 ruling in Brown v. Board of Education -- the Supreme Court was one more arena for the bare-knuckles partisan politics extended from government's other two branches.

Still... in recent history we have seen the sequence of:

- The 5-4 ruling in Bush v. Gore, which 12 years ago was shocking not so much in its outcome as for the naked "results-orientation" of the five-member majority. (If you have forgotten: the ruling specified that it should not be used as precedent for any other decision, and was issued under circumstances that made it effectively impossible for the losing party to appeal.) For all of their esteem as the "swing" members of the court, the reputations of both former Justice Sandra O'Connor and current swingman Anthony Kennedy should forever be diminished by their having made up the majority. As John Paul Stevens said at the end of his memorable dissent:

...[T]he majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.

- The 5-4 ruling in Citizens United, which two years ago revealed either a willed indifference or a genuine ignorance about the realities of politics through its assumption that unlimited corporate money would not have a distorting effect. As Dahlia Lithwick has pointed out, for the first time in a very long while, no one on today's Court has ever run for public office, one of many signs of their insulation from the real world they are ruling on. All are products of either Harvard or Yale law school. All have lifetime jobs, with health insurance. Stephen Colbert immediately saw what was hilarious about the Citizens United ruling, but Justices Roberts, Alito, Scalia, Thomas, and Kennedy decided not to. Though it's tasteless to point it out, the Bush v. Gore ruling gave us two members (Roberts and Alito) of the Citizens United majority.

- The 5-4 tone of questioning in last week's Obama health care case (counting the mute Justice Thomas as an opponent, as everyone assumes he will be), which reinforced what John Paul Stevens called "the most cynical appraisal of the work of judges throughout this land."

More details on the tone of questioning in an followup soon. For now, please see Andrew Cohen and Jonathan Cohn, or Jeffrey Toobin about the radical activism of today's "conservative" Justices.

Among the implications: life tenure for federal justices, especially for the Supreme Court, has got to go, since it makes the appointment process a crudely cynical actuarial contest. (Locus classicus: Clarence Thomas, age 43 when appointed, so if he watches his weight he could plausibly end up spending most of his life as a sitting though silent Justice.) Eventually a sufficiently ruthless party will nominate Justices while they're still taking their LSATs.

As with equal representation for all states in the Senate, real-world circumstances have changed so dramatically in the past 230+ years that the practical-minded drafters of the Constitution would never have suggested that the details of their scheme should be applied, unaltered, in the 21st century. When the Constitution was written, the life expectancy for men, at birth, was barely into the late 30s -- and even men who reached age 40 could expect on average to live only into their mid 60s. Limiting terms on the federal bench to 15 years -- or 18, or 20, in line with what would have been foreseeable at the Constitution's drafting -- would avoid the lottery-and-longevity factor in today's jurisprudence. More to come. For now thanks to this and other readers for their observations.