Monday, June 25, 2012

The Supreme Court: Already Undemocratic, and Just Getting More So

[Cross-posted to Political Context]

The Supreme Court will almost certainly hand down its decision on the constitutionality of the Affordable Care Act this Thursday. I'm going to be out of town when that happens, camping with my daughters in Oklahoma. So let me get my prediction in now, which some of you already know: a 5-4, strict party-line decision, probably written by Roberts himself, invalidating the individual mandate on commerce clause grounds and thereby eviscerating the whole law (but leaving the expansion of Medicaid intact, though good luck in trying to find some way to make that function absent the rest of the law's overall structure). The undemocratic, individualistic coup of America's always shaky ability to be able to effectively govern itself will continue apace.

I say "coup," because that's what James Fallows calls it. He looks all the way back to Bush v. Gore more than a decade ago, and he suspects that the decision on health care reform is going to end up being yet an additional step in our country's slow, crashing dissent into endless political wars, where dysfunction is the rule of the day, where every decision is an all-or-nothing one, and where the essential norms of democratic governability--that, as he puts it, "you'll go so far, but no further, to advance your political ends," where "loyalty to the system as a whole...outweighs your immediate partisan interest"--are functionally absent. Ta-Nehisi Coates rightly notes that, from the perspective of African-Americans anyway, those norms have been absent far more often than otherwise, and he certainly has a point...but I would argue, even if the idea of a "coup" is stretching things a little far, that Fallows is right to think that this is an arguably dangerous moment in American history, a moment that we haven't seen the likes of in many decades: a moment when all the instituionalized practices and routines of democratic government seem dubious or even irrelevant to the supposed ability of the people to organize themselves and take responsibility away from those whose wealth, position, or power allow them to easily grab it in the first place. The result is mutual disorganization, recrimination, retrenchment, and despair.

Yes, despair, which I've been feeling more and more often for a year now. I look back and I see a decades-long sweep of Supreme Court decisions that have systematically undermined the ability of the communities of the United States to struggle with and accept the burden of compromise, civic duty, tolerance, and responsible choices. Obviously there were huge differences between the relevant case law, the philosophical priorities, and the political and policy dynamics at work in cases like Roe v. Wade or Buckley v. Valeo or San Antonio v. Rodriguez, but I think that over the past decade--as the political gloves slowly but surely came off during the 1990s in years following the end of the Cold War, and the weakness and fissures within our overly praised global capitalist dynamo began inevitably revealed themselves--we've seen their fruit, in a series of decisions which, again and again, emphasize the idea that we're all on our own, and that the only real responsibility of a citizen in a democracy is to, above all, keep their hands on their stuff (and its corollary: don't let anyone else interfere with your stuff--your property, your rights, your land, your money, your opinions--either.). Citizens United v. Federal Elections Commission, Dukes v. Wal-Mart, Snyder v. Phelps (a decision I especially hated), and the just decided Knox v. Service Employees International Union...all very different cases, but all of them sharing one constant: that the people--even if openly and democratically organized, even if acting in accordance with well-established liberal procedures, even if taking into consideration minority perspectives, etc., etc.--probably just shouldn't be allowed to organize solutions to problems that might get in the way of someone who wants to be able to sell (or buy), or shout (insultingly) out, or sign (or oblige someone else to sign) a contract involving their precious stuff.

The way I conceive of this coup obviously cuts across the usual framing of America's ideologies, and I recognize that there are plenty of limitations to its general applicability (among the most obvious: not all rights/property/stuff is equal, especially given reigning gender and racial inequalities, and so presumably there do need to some varying standards as for when a polity's democratic policy-making can interfere with one's body vs. one's job vs. one's community membership, etc.). But as I head off on our camping trip, and expect to return in a week to learn that a concerted political movement has, in fact, managed to turn the Affordable Care Act--an admittedly convoluted, philosophically flawed, and yet, I think, nonetheless utterly necessary step towards figuring our how to manage the health needs of this too-large country with at least some sort of concern for equality--into yet another a constitutional crisis worthy of being stopped by five determined individuals on the Supreme Court...well, I'm just going to see it as one more step down a path which we've been walking for more than 40 years now. And unfortunately, there's no real turn-around on the horizon.


Timely Renewed said...

The Supreme Court is a fundamentally undemocratic institution, and should not exercise the power it does over the meaning of our foundational document. The Framers never intended for the Court to have such power. The Framers' method of resolving fundamental constitutional questions was the democratic political process of amendment.

Unfortunately, the amendment process has become moribund, which allows the Supreme Court to change the Constitution without any check or accountability. We need to revive the constitutional amendment process so that significant constitutional questions can be resolved by we the People, not we the Judges.

One useful reform which would very much conform with the Framers' original intentions would be to allow the states to initiate and enact constitutional amendments without having to go through either Congress or the unworkable and outmoded mechanism of a convention.

To accomplish any such reform, both conservatives and progressives will need to get past analyzing the Supreme COurt's role on the basis of whether they approve or disapprove of particular decisions on policy grounds, and instead unite on the common ground that control over our Constitution should rest with the people rather than elite Washington institutions like Congress and the Supreme Court. See

Scott--DFW said...

Will Wilkinson responds to Fallows's hysteria (and, by extension, yours):

Baden said...


You were right and wrong. Commerce clause? Not gonna happen.
Tax? Yes.

Anonymous said...

Surprise! Can't wait to read your take when you get back.