And it hasn't just been Bush v. Gore, as Jeffrey Toobin points out. The Court -- with the unelected president's additions, like Roberts and Alito -- has gone on to dirty its reputation even more. We're now at the 10th anniversary of that signal decision by a shamed Court. Things are worse, not better.The least we can expect from these men and women is that at politically charged moments—indeed, especially at those times—they apply the same principles that guide them in everyday cases. This, ultimately, is the tragedy of Bush v. Gore. The case didn’t just scar the Court’s record; it damaged the Court’s honor.
Judicial conservatism was once principally defined as a philosophy of deference to the democratically elected branches of government. But the signature of the Roberts Court has been its willingness, even its eagerness, to overturn the work of legislatures. Brandishing a novel interpretation of the Second Amendment, the Court has either struck down or raised questions about virtually every state and local gun-control law in the nation.
As has happened with "conservatives" in other branches of government and throughout the putative "right," we're dealing with people who call themselves "conservative" and show no awareness of what being a conservative entails. These are reckless, self-serving radicals. We can't expect Supreme Court justices to be perfect in their decisions. But we can and should expect honorable men and women.
In Citizens United v. Federal Election Commission, decided earlier this year, the Court gutted the McCain-Feingold campaign-finance law in service of a legal theory that contradicts about a century of law at the Court. (Citizens United removed limits on corporate expenditures in political campaigns; the decision is, at its core, a boon for Republicans, just as Bush v. Gore was a decade ago.) When the Obama health-care plan reaches the high court for review, as it surely will, one can expect a similar lack of humility from the purported conservatives.
Many of the issues before the Supreme Court combine law and politics in ways that are impossible to separate. It is, moreover, unreasonable to expect the Justices to operate in a world hermetically cut off from the gritty motives of Democrats and Republicans. But the least we can expect from these men and women is that at politically charged moments—indeed, especially at those times—they apply the same principles that guide them in everyday cases. This, ultimately, is the tragedy of Bush v. Gore. The case didn’t just scar the Court’s record; it damaged the Court’s honor.
With four Supreme Court justice of questionable character (and a raft of poor appointments to the federal courts in general) our system of justice is hardly something we can be proud of.
