Today’s exciting events challenge the belief that the U.S. is a democracy, if anyone still operates under that illusion. We have a government with democratic characteristics, but as the minority election of George W. Bush showed in stark terms — enforced by the Supreme Court, let us not forget — and the Senate, in particular its current 60-vote super-majority rule, reminds on a daily basis, this is far from a democracy.
The Supreme Court makes the point most dramatically. For the 24 hours just past, elemental decisions about personal health and economic organization for a nation of 312 million people rested on the whim of one person. Imagine if Chief Justice Roberts woke up this morning, drank a glass of juice, and said: “You know what, I don’t think an individual mandate is like a tax after all. Clerk! Get me re-write.” Poof. No more Obamacare. Not that he would, but he could.
How can this be a good system. Today, supporters of the president are happy. In principle, however, we should all worry because, as Lord Acton observed, power corrupts, and absolute power, like that which the unelected life-tenured Roberts held today, and will again, corrupts absolutely.
U.S. electoral history has moved in a progressive direction. First, only white men with property could vote, generally speaking. Then, black men. Then, women. Indirect elections for the Senate fell by the wayside. Electoral College electors lost their autonomy. Civil rights legislation improved access to the franchise.
The Court, however, is going in reverse. First, it was largely an afterthought without even an office. Finally, someone found space for it in a spare basement. Its first substantive effort to overturn a democratic law was in 1857 when it determined that black human beings were not legal people, and helped start the Civil War. It didn’t try again in a meaningful way for a long time. Since World War II, however, the Court has steadily increased its anti-democratic power until we find ourselves at today’s sorry pass, where legislative power is held by an unelected cabal of attorneys accountable to no one but their own prejudices.
Far better if our health care policy was set by elected representatives. It is their province to say what the law is. The Court’s role should be to enforce their decisions. One robe to rule them all, one robe to bind them is anti-American, to the degree that term envisions liberty and justice for all.
The US is not now, never has been, and IMO should not be a democracy. We are a finely balanced constitutional republic, of which some aspects are more democratic than others. If the Constitution means anything it is imperative that we have a Court that is shielded from the politics of popular will because frankly consistent application of the Constitution is not always terribly popular. The House is the most democratic in that they are directly elected in roughly equal districts as far as state boundaries will allow. In fact it was the Court that mandated equal districts at both the state and federal level. The Senate and the Presidency are quasi-democratic because while the popular vote more or less governs, equality of representation among the states and the winner-take-all assignment of most states’ electors skew the outcome a bit. The Court procedurally is the least democratic, but even they are nominated and confirmed by those accountable to the people. Ironically, there are examples such as districting already mentioned, or take your pick from several Warren Court decisions that showed that in many ways THAT is the branch most protective of the privileges and immunities that we associate with “democracy” in the broader sense. Would you prefer the judges be elected as some states do? I sure as heck don’t, even more since the Court just said that corporate influence on elections is OK with them!
So you point out that we’re not a democracy because GWB didn’t win the popular vote and because the senate takes 60. But then you complain that SCOTUS works *exactly* by popular vote.
No makee sensee.
Within the Court, it’s popular vote. But because those voters are not themselves elected by the People, it’s a couple of degrees removed from actual Democracy.
Also, the mechanism for the selection of Justices allows for significant bias in the Court’s makeup. The “balance” provided by the three-branch system sometimes is an illusion, especially when a conservative Congress and Executive get to install several young Justices.
It can set its voting policies however it wants. For example, it could require a super-majority for all decisions. Its size can also be adjusted by Congress and the President. For example, it could be reduced to one justice, with those who retired not replaced, further concentrating power.
When a conservative legislature defines marriage as between a man and a woman, the court should simply enforce their decisions? I think you’d answer “no” to that question>
I feel like what this post really says is “The courts should be involved when they agree with me, and they should butt out when they don’t.”
It is an argument for judicial restraint, and avoidance of “political” policy decisions. But these are things that have long since been abandoned.
Indeed, this very concept has been the conservative complaint against the courts since Warren Court. Liberals vigorously defended the courts’ role in protecting the rights of minorities against the majority, in Mills’ sense. Then, as liberals proved unable to win presidential elections for 3 of 4 decades, they were unable to maintain control of the court, which has now swung the other way. And now, suddenly, they are 9 un-elected dictators with “absolute power.” (BTW, i suggest that you check your definition of “absolute”)
So, at this point, this entire argument strikes me as horse-hockey, in the same sense as arguments about the filibuster are horse-hockey. The filibuster: a bastion of civilization and democracy when we are in the minority, an abomination when we are in the majority. We, as political activists and Party Members, are able to switch freely between the two depending on circumstances, depending on whether we are at war with Eurasia or Eastasia.
I agree, in practice. Nonetheless, they are still worth discussing, if only because it is a fascinating development in terms of political theory. Why do you think Americans are willing to surrender this power to the justices? I don’t think it is as simple as tactical decision-making: legislating abortion rights here (secularists win!), overturning campaign finance there (the rich win!). A more profound shift in power is going on, it seems to me.
But that discussion must begin with the premise that this is a change that began at the instigation of the left, and was widely lauded when the increased judicial power was expanding civil rights, abortion rights, and other things of a similar nature far faster than the political environment would have allowed. Indeed, I am quite certain that the right made EXACTLY the arguments you made above for much of the latter half of the last century. They have only quieted these arguments now that it appears that they have or are close to control of the court.
This is an issue as old as America. Jefferson thought Marbury was an outrage. But even if we grant your argument that the current debate debate started with the Warren Court, I don’t see how personalizing it is a constructive contribution. I wasn’t around urging the Warren Court on.
to this website. The only reason why the ACA was upheld as constitutional is because it’s a Republican plan. If it had been single-payer, they would have found a way to get rid of it.
Since the penalty is considered a tax, shouldn’t it then offer up some sort of medical benefit package to those who choose the penalty over buying health insurance? The myth that uninsured people go to emergency rooms for free care is so ingrained in our talking points that it’s believed to be true. The truth is, an uninsured person will still get billed for those services. If they don’t pay, the bill will go to collections and ultimately ruin their lives, as their credit report will now reflect these unpaid bills and keep them from ever buying a home or a good car. Not sure why they should pay a penalty and then still be left without some sort of coverage. If they aren’t given coverage, then it’s nothing more than a huge government sponsored rip-off. Health insurance premiums are way too expensive in this country, and the out- of-pocket expenses in addition to those premiums are ridiculous. We need some reality in this debate, not a bunch of back patting, consequence spinning , misinforming talking points that support a failure of a solution.
I see that as one of it’s advantages. After all, those over 65 have had a single-payer system for almost 50 years, funded by a separate tax, and to my knowledge it has not been legally challenged.
I haven’t heard anything so overwrought in a long time, Bob_Neer. The more I learn about the majority opinion, the more, as a fiscal conservative, I like about it.
If you’re so scared about nine unelected tyrants in spooky black robes, then perhaps you should look to your favorite progressive politicians to craft legislation more clearly and simply. The ACA is not one of those pieces. Neither is Dodd-Frank. Both laws are impractical, bureaucratic nightmares full to the brim with decades worth of unintended consequences.
Major social programs like this need broad political support. Neither ACA nor Dodd-Frank have that support, and so into court they go. What comes out is anyone’s guess.
The goal is for the legislative branch to write and pass consensus legislation which is both popular and practical. The ACA is neither, and I blame Obama and the Dems that rammed it through without a single Republican vote.
But McConnell had made it clear, in December 2008, the Republicans would not vote for anything, at all, ever, regardless of whether it would be good for the country, because things that are good for the country are bad for Republicans.
Actual conservative input into the bill would have been beneficial, but Republicans chose to play tiddlywinks.
nt
Good luck with that.
are you urging a true Democracy with majority win take all and no input from SCOTUS regarding the constitutionality of the law. Should slavery still be the law if the majority of Americans voted for it or elected politicians to pass that law? Should we be putting prayers back in schools since it was so widely popular even though The Supreme Court first ruled against school-sponsored prayer in 1962 in Engel v. Vitale?
I agree that this is simple Bob whining about a court that makes decisions he doesn’t like so therefore it’s a bad thing.
Get over GW winning the POTUS with less votes, that is our system.
Consistent with changes in our electoral system over the span of our national history.
nt
I can see how you might think that, but actually my complaint about the judiciary is more profound. Basically, I don’t think it is a good long-term policy for individuals to have this much power.
Our problem with the Court’s role in Bush v. Gore is not that it gave the presidency to the person with fewer popular votes (though many of us would just soon go to straight popular vote, but that would require a constitutional amendment), but rather that it stopped Florida from recounting to make sure that within the current system their electoral votes were correctly assigned.
Not the Court’s.
Since you don’t like that state making their own decisions against your ideology?
And, yes, it is consistent to support the Voting Rights Act also also think that Bush v. Gore was over-reaching. See, now I’m even helping to make your arguments for you. That’s because what we do here at BMG is teach.
But, I must say it is fascinating to see you making arguments in favor of federal power.
Bob, thank you for your posts but I disagree strongly. The Supreme Court’s exercise of judicial review is the primary safeguard for the rights of minorities and people with unpopular viewpoints and against overreach by the other federal branches. This function is so essential that it’s well worth the risk of good legislation being struck down occasionally. Whatever else it did, the health care decision yesterday reiterated the importance of judicial restraint and you should be glad for that. Now is a particularly strange time for you to question the value of three coequal branches.
Tell that to African-Americans in 1857, Japanese-Americans in 1944, and the 23 percent of Americans who want to ban abortion (I’m pro-choice, but they certainly are a minority, and very persecuted as they see it). The Supreme Court is institutionally the most conservative of all the branches — Tocqueville, accurately in my view, analogized it to the US aristocracy — and is in general no friend to “minorities and people with unpopular viewpoints.” If you place your confidence in to for opposition to “overreach by the other federal branches” you will be badly disappointed. There are exceptions, for sure, but they prove the rule.
These are examples of horrific failures by the Supreme Court, for sure. But that an institution has failed in some instances does not mean it should be eliminated. What is the alternative? You don’t offer any convincing ones.
You also seem to be taking a lot for granted. Were it not for the Supreme Court criminal defendants would not have a right to representation, freedom of expression would be substantially curtailed (no satire or protests allowed), there would be few restrictions on the ability of police to search your house, and yes – in most states women would not have the right to choose. These are no mere “exceptions.” Would you throw them away so quickly because of what a foreign commentator said 175+ years ago?
That the November election, in which your candidate has a battle on his hands, and if Romney is elected it is quite likely that the present ideological split in the Court will be broken decisively in the Scalia/Thomas/Alito direction.
So this has a strong flavor of: hey this was a great horse while it lasted for us, but now that the tide is turning, we note that it is a horrible abomination. See arguments re: filibuster, pro and con.
I don’t like how they decided and especially the part about how it could not be used as precedent, but as I recall the plaintiffs were making an equal protection argument, which arises from the federal Constitution and thus makes it a federal case. Plus, it is a federal election so on general principles I’d rather have the Supreme Court weigh in than leave the election of the President for all of us to the idiosyncracies and apparant mess-ups of a single state.
which at one point was a term of art that the Court would refuse to hear, despite the presence of a legitimate question.
That would have sent the election either (i) back to the Florida authorities, which would have correctly counted more votes for Bush; or (ii) to the House, then under Republican control, which would have decided in favor of Bush.
Either would have been preferable to the manner in which it was done, which was entirely unnecessary.