Epilogue to Previous Post


The Supreme Court

We came close to a constitutional crisis of legitimacy once before.  Richard Hanson writing for the Atlantic notes that it was the third branch of the American polity that settled the month-long dispute between Al Gore and the younger Bush over Florida’s electoral results.  It was Bush vs. Gore that settled the matter in Bush’s favor.  Future historians might see that as a tipping point, when the legitimacy of the Supreme Court first called itself into question.  It was followed by the Senate’s refusal, under Mitch McConnell, to consider Obama’s appointment of centrist Merrick Garland and the subsequent appointment of conservative Neil Gorsuch.  As Hanson notes, “although McConnell justified his delaying tactics by citing the ‘Biden Rule’ not to confirm a Supreme Court justice in the last year of a presidency, he has now reversed himself and says he would hold a confirmation hearing should a justice leave the Court in the run-up to the 2020 election.”  Are not only blatantly partisan, but undermine, as Hanson also suggests, any efforts to address the anti-democratic (and anti-Democratic) gerrymandering as demonstrated by “the Court’s decision last year in Rucho v. Common Cause to keep federal courts out of the business of limiting partisan gerrymanders.”  Beyond that, there was the contentious appointment of Brett Kavanaugh, whom many on the left considered not only underqualified, but morally suspect.  His appointment followed party lines with only Democrat Joe Manchin voting in favor, balanced out by Republican Lisa Murkowski voting against, making him a “Republican” justice, cementing a clearly partisan 5-4 “Republican” majority on the court.  Should the 2020 election be close along the lines of Bush v. Gore, and should it come down to a court decision between Trump and the Democratic candidate, and should the court decide in favor of Trump, it will be difficult for many Democrats to consider the decision anything other than a McConnell decision at one remove.  Conversely, should the court decide in favor of the Democratic candidate, it will be difficult for many Republicans to accept the betrayal.  In either case it does not bode well.      

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