Over at Teh NooYawkuh, Jefferey Toobin gets into some important territory over why we should care about the abortion of Justice that is the Bush v Gore decision that pushed us all into this maelstrom of chaos and madness.
I'm not usually a fan of Toobin's because, like many legal scholars, he can become way too dry and nitpicky, and at the same time fail to clarify his topic either as to its overall import or its affect on our own sweet selves. On the other hand, he is arguably the best of the legal scholar lot when it comes to it. So while I may not be a fan on principle, given the choices available, he's one of the better ones.
That aside, in the New Yorker piece, Toobin sets up and gets into what went wrong, or rather what was wrong, with the Supreme Court's Majority action in Bush v Gore, and he gets into what the legal consequences have been, in the process illuminating some of the direct connections between the judicial activism represented by Bush v Gore, and the current Court's continuing activism under the guise of "conservatism" and "originalism."
And in his considered opinion:
The echoes of Bush v. Gore are clearest when it comes to judicial activism. 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. 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.
"A similar lack of humility... "
Indeed. But that is the characteristic of our Government, through and through. It's almost impossible to conceive of how humble, how truly humble, our national government was -- with some very important exceptions -- right through the Clinton years.
And then it changed, it all changed, with the impossibly lawless act of the Supreme Court when it interfered in the election of 2000.
The Government has never recovered from it. My impression is that it cannot.
What happened on December 12, 2000, was a Constitution-shattering event. As ludicrous and theatrical as the Impeachment of President Clinton was, at least it did have a grounding in the Constitution, and Constitutional processes were followed (well, some were invented), and the outcome was an outwardly honorable one. The Nation and the tattered remnants of the Republic could survive the Impeachment.
Not so with the lawless intervention of the Supreme Court into the 2000 election. That broke the contract between the Government and The People, it appears irrevocably.
From then onward, the Government withdrew behind the barricades. No longer did the People matter. And the reason why? Simple: apart from occasional futile outbursts of anger and outrage, the People would do nothing while the Government went about whatever it chose to do.
The Government, its Owners and Stakeholders would make the decisions, and then market them as products to the People. But even if the People weren't buying, they would have no real choice in the matter.
The notion that the TeaBaggers and their sponsors and allies are going to change all that to what it's "supposed" to be is just silly. First of all, they are the bastard offspring of billionaires taking advantage of the vulnerability of very confused and frightened people; and secondly, the TeaBaggers' impulse is to submit to corporatist authority, which of course is the point of the Koch brothers' efforts to control the Government itself.
The nascent imperium that we have as a consequence of Bush v Gore is what the Kochs and their hordes want to seize and operate for their own interests and ends. And they are well on the way to doing so.
They are pushing hard and fast now, and they will brook no opposition. And they are winning.
But this is not the End of America. It is the final nail in the coffin of the Republic. The Government may well become the plaything of the Kochs and their allies and storm troops, but it will never again -- barring revolution -- be humble before the People, never again be more than marginally accountable to the People, and never again be susceptible to the Public Will (again, barring revolution.)
It is a descent into madness. And yet so many people are able to adapt and go on. As if nothing were awry, even many of those who know the truth.
We will survive.
An hour long lecture by Jeffery Toobin in July 2008 that hits on some of this -- eventually.