But confidence in the very idea that the Roberts majority will approach this as a "normal" legal matter, rather than as one more Bush v. Gore front in the political wars, grows ever harder to maintain, especially after the latest labor-rights ruling. It is worth reading carefully this lead editorial in yesterday's New York Times. In short, the same five conservative Justices who in their pre-appointment phase had inveighed against "judicial activism" and "legislating from the bench," while promising to live the gospel of judicial "humility" if confirmed, went out of their way, in a ruling written by Samuel Alito, to decree new law contrary to what Congress had ordered and other courts had long approved.*
Normally I shy away from apocalyptic readings of the American predicament. We're a big, messy country; we've been through a lot -- perhaps even more than we thought, what with Abraham Lincoln and the vampires. We'll probably muddle through this and be very worried about something else ten years from now. But when you look at the sequence from Bush v. Gore, through Citizens United, to what seems to be coming on the health-care front; and you combine it with ongoing efforts in Florida and elsewhere to prevent voting from presumably Democratic blocs; and add that to the simply unprecedented abuse of the filibuster in the years since the Democrats won control of the Senate and then took the White House, you have what we'd identify as a kind of long-term coup if we saw it happening anywhere else.**
Liberal democracies like ours depend on rules but also on norms -- on the assumption that you'll go so far, but no further, to advance your political ends. The norms imply some loyalty to the system as a whole that outweighs your immediate partisan interest. Not red states, nor blue states, but the United States of America. It was out of loyalty to the system that Al Gore stepped aside after Bush v. Gore. Norms have given the Supreme Court its unquestioned legitimacy. The Roberts majority is barreling ahead without regard for the norms, and it is taking the court's legitimacy with it.