After noting a substantial decline in public esteem for the Supreme Court, as measured in opinion polls, Burt Likko wonders what it means:
The canary looks a little woozy to me. It’s certainly not dead yet and there is no reason for despair, but something isn’t as it ought to be. Aren’t we, as a culture and as a people, losing something precious when our attitudes towards the bench shift so much in the span of a single generation?
“No reason to despair”? If he says so, but here’s an intermediate draft of unreasonable despair: It wasn’t just Bush v Gore, and it wasn’t just the narrowly political nature of Bush v Gore, and it wasn’t even the contradiction between the supposed strict constitutionalism of conservative judges and their deemed necessary resort to a less than strict, arguably extra-constitutional interventionism. Originalism becomes self-undermining, since in the end it’s the purest form of legal positivism, and tends to produce absolute confrontations between need and practice, natural justice and formal justice, exigency and ideal. Bush v Gore was pure exigency and defined as such – in other words the self-falsification of the rule of law. It completed the comprehensive exposure of the arbitrariness and insufficiency of the constitutional system, as the Court called upon and irrevocably spent 200 years of traditional deference. The conduct of the Court furnished just one element in the vast self-satire that that election produced, but it’s a crucial one, since the decision of the court is one of the main ways that the god of the American secular religion, the mysterious Popular Sovereign, speaks. When we no longer hear Her, or believe we do, the system is rubbish, hardly fit for recycling. The Conflict Formerly Known as the War on Terror and the rest of the ’00s up to this very day continued a descent into post-constitutional governance, which the fetishists of the Constitution are implacably determined to hasten. West Wing becomes Veep. Obamessiah turns into the psychopathic janitor-in-chief. A figure like Mitt Romney – open fraud, an ambulatory non sequitur whose nonsensical emptiness is his main redeeming quality – becomes theoretically electable as Head of State and Government. The words “citizens united” come to mean “citizenship annihilated,” we wait for the economy to vote for or against itself to no known purpose, and at every crisis the mask slips away further, revealing nothing at all in the foreground, beyond it a coven of vampires (“them”) amidst a mass of zombies (“us”). To continue functioning at all, the system will have to finish discarding itself, likely to the applause of those few who even notice.