We’ve actually been there before. This is more or less precisely what happened to Franklin Roosevelt and the Democratic Congress of the New Deal era. Trying to grapple with an economic catastrophe, they passed a flurry of popular legislation which was then discarded by the only non-democratic branch of the government, a Supreme Court that had been populated by conservatives of the Harding/Coolidge/Hoover school of pro-business Republican orthodoxy from that (and our) time. Roosevelt responded with a court-packing scheme that never made it through Congress, despite his personal popularity and the public support for his legislative rescue agenda. Still, many people argue, just the attempt was successful in moving at least one of the votes from the five-member majority into Roosevelt’s column, thus isolating the remaining conservative "Four Horsemen" in the minority and creating a new 5-4 majority, this one progressive, though. Perhaps Anthony Kennedy is destined to play this role in the coming decades, if we’re lucky.
If not, things could get more drastic. Such a president in such a predicament would not be the first to blow off a recalcitrant court. When he didn’t like the Supreme Court protecting Native American tribal lands from the incursions of state legislatures, Andrew Jackson famously responded to their ruling by exclaiming, "John Marshall has made his decision, now let him enforce it!" – knowing full well, of course, that that would be impossible. But such constitutional meltdowns – even for the right reasons – can come at some considerable cost, not least to public respect for the rule of law.
And all of that may be something close to a best case scenario, absent a Kennedy defection from the Dark Side. These cats have been waiting in the wings for this moment, anxiously and with ill humor, for a long, long time. Moreover, after this term, they’ve tasted blood. Civil rights is just about toast already. Campaign finance reform is gutted. Criminal justice jurisprudence is headed back to the days of the stockade and guillotine. Corporate power is rising to a level that might shock Andrew Carnegie.
And that’s just the beginning. Look out Roe. Look out civil liberties. Look out congressional oversight of the executive branch. Remember when the cops used to beat people in New York while laughing, "It’s Giuliani Time!"? Well, welcome to Scalia Time. It ain’t gonna be pretty, no matter how it goes down. The only question may be how bad it gets.
On the other hand, judicial regressivism is likely to be even less popular in America than has been its overtly political cousin, especially since the former will be following on the noxious heels of the latter. A Supreme Court which matches George Bush every step of the way in terms of both its bad politics and its obstinance could find itself facing some serious public wrath, particularly after a belly-full of eight years of the same from Bush. We may well need to make our policy preferences strongly known to this ‘non-political’ branch of government so immersed in politics, and so political in its decision making.
After Gerry Ford proclaimed that "our long national nightmare is over", he followed that famous lines with these words: "Our Constitution works; our great Republic is a government of laws and not of men. Here the people rule."
Methinks we may have yet another chance to test that proposition in the near future.
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