Jim expands on his post here and here. As always, both are worth reading. Jim also points to Jeffrey Rosen's piece in this magazine on then incoming Chief Justice John Roberts. In the piece Roberts sees his task as avoiding 5-4 decisions on major cases, a task that he's failed at that, much like Obama failed to depolarize Washington. As with Obama, I'm less convinced that the failure is his fault, and more convinced that such a task isn't really under the control of a chief justice (or a president.) I actually thought that at the time, when I read this. I was never clear on what mechanism Roberts would employ to depolarize the court. So often you hear people involved in politics talk about polarization as a problem of Washington, as opposed to something inherent to the people.
I don't have any disagreement with Ta-Nehisi Coates's examination of whether the "norms" of political life have done as much to buffer extremism as I suggested in the original post. I was talking about right/left interaction among the parties, and I do make the case that in this arena previous norms were different, and that the difference mattered. Main example: the filibuster. Either party could have decided at any point over the years to filibuster just about every appointment and piece of legislation. That didn't actually begin to happen until five years ago. Ta-Nehisi is talking mainly about rights, power, and relations among the races. Of course he is right that "norms" did very little to promote justice there.
Fallows is making an important distinction here, but I think he is being overly rosy in thinking that what has ever driven norms is the goodness of the people involved. Norms are not by their nature Democratic, and they generally require something to push people to follow them. The system of checks and balances, both between the branches of government, and between government and the people depends on the acceptance of norms. But the way that this works is that if some group violates the norms there is a push back, and they lose something of value to them.To take a recent case, the Impeachment of Bill Clinton was clearly something that the Republicans in Congress could do while staying within the rules. But it was equally clear to most people that they were holding a political trial using a tool that should be reserved for criminal trials. This resulted in Clinton leaving office more popular than his policies (given the partisan nature of the country) would have led one to predict. The Republicans violated the norm, the people objected and Republicans were punished to a degree. This is one reason why Democrats chose not to violate the norm in return when they had the chance, it is not that they are better people (at least not in that regard).I personally think that the Supreme Court covered itself with shame in Bush v Gore. But I don't see any evidence that they in fact violated a norm. There does not seem to be any popular backlash. The cynicism about the Supreme Court seems in keeping with cynicism about everybody. The point is that what the Norms are at any given time is not always clear, and they do not match what I like or what is good for the country. Similarly, there were no norms demanding equality for African Americans in the South, and so the example above did not violate them.But my point is that norms are real and important. People expect their elected officials to act in certain ways that are not coextensive with simply acting legally. And societies work well when elected officials feel pressure to stay within the norms. But it is a mistake to think that the actual norms of a society have to be positive things, or that they support some particular notion of Democracy. I expect that people believe the courts should not push their political preferences from the bench, but what exactly people will see as violating that norm is hard to know. Bush v. Gore did not seem to qualify.I have no idea if overturning health care will do so. It could if particular popular provisions are overturned and people start to realize it. Or it might not. But where norms do not exist at all one gets the chaos in Egypt where everybody can point to the bit of law that supports them, but nobody knows what trumps what.
This article available online at: