The decision in Bush v. Gore was so disgraceful on the face of it that the Court itself warned against using its "reasoning" in other cases. The five conservative justices elected Bush president.
After eight years -- after, that is, a couple of botched wars, and after the American economy was nearly wrecked by the dismantling of the dismantling of the financial regulatory system combined with the mishandling of monetary policy in the face of a hugely inflated housing bubble, and after the poisoning of our political discourse -- we managed to get rid of the man the Supremes had appointed president.
But the Supreme Court's final decisions of this year's session reminded us, if any reminder were needed, that the impact of presidents outlive their terms in office. Because of Bush v. Gore, we now have Roberts and Alito on the Court. It was bad enough having a Court that would give us a Bush v. Gore, but their decision opened the gates for a Court still worse.
And now, too, it becomes more visible what has been the essential purpose of the right's long and determined campaign to create this Court: to shift power from the American people to the Corporate system.
This is how Citizens United should be understood: declaring corporations to be persons, and money to be speech, the Court magnified the power of the Corporate System to dominate our elections.
With the Hobby Lobby decision, this five-member corporatist majority extends the "rights" of these corporate persons into a new area.
And with the Harris v Quinn decision, the Court works to weaken union power still further. With working families treading water now for decades, and with the power of unions now barely a shadow of what it was in the wake of the progressive reign of FDR, and in the 1950s when it was celebrated as one of the "countervailing powers" that maintained a degree of justice in the American system, the Court now decides to weaken the union movement, thus kicking the working class when they're already down.
It has frequently been noted that the "Roberts Court" has consistently favored corporate interests over individual interests. (See for example this study in the Minnesota Law Review and this article in the New Yorker.)
If we could peer underneath the surface and discern the nature of the forces that have been operating to bring us to our present worrisome state, we would find that this corporatist seizure of the American justice system is is a major clue regarding how pathologies of power have come to degrade contemporary America:
The corporate system -- which seems increasingly unmoored from any values other than power and profit -- is working systematically to shift power and wealth from average Americans to itself, i.e. to the mightiest and richest powers in our society.
To this end, it has worked long and hard -- and, as we saw this week, all too successfully-- to turn the Supreme Court into its instrument.
An Opportunity for Democrats
As dismal as this picture is, it may open up a significant opportunity for Democrats.
A new poll shows that trust of the Supreme Court among the American people has hit an all-time low.
Clearly, this Court is dominated by its Republican appointees. Should not those unhappy with this Court be inclined to want to take power away from those who have created this corporatist instrument?
Another aspect of this opportunity: In the wake of Dave Brat's defeat of Eric Cantor in their primary election in Virginia, there were reports emphasizing that some of Brat's support comes from people who are tired of a GOP that serves Wall Street and the Chamber of Commerce at the expense of the people.
These people should vote Democratic. They really have no place else to turn if they want a remedy for this problem of the corporate takeover of America.
It is the Republicans who are giving the corporations more and more standing, and more and more rights. It is the Republicans who are choking off the voice of the people in the determination of where our ship of state sails. Voting for the GOP only advances that degradation of our democracy.
To gain the support of those on the right who oppose this corporate takeover, Democrats will need to expose the contradiction between the libertarian approach many of them espouse and the desire to reverse this corporate takeover and return power to the American people.
You can oppose the corporate theft of power and wealth from the people. Or you can rail against regulation and "big government." But you can't reasonably do both.
There is no libertarian solution to the problem.
The task, then, is to show that the issue is not the size of government, but whom it serves.
America already conducted an experiment -- between the Civil War and the era of the New Deal -- in having vast corporate power combined with a hobbled federal government: The result wasn't pretty. What it showed was that corporations ran the country -- crippling government's ability to control them for the public good, while harnessing the powers of the state to expand its empire-- and millions of average Americans suffered the consequences.
Teddy Roosevelt and the progressive era helped stem that corporatist tide, and then Franklin Roosevelt, in the midst of the Great Depression, finally turned it.
Libertarians should be challenged: What can you propose, aside from government, that can stand up to the corporate system?
And if there's no libertarian solution, you will have to choose which of two options you are going to support: 1) Are you going to support a kind of liberty that allows the mighty corporate system to run rampant over society, and to seize control of the government? Or will you support a government for and by the people that will stand up for justice against the rule of raw power?
We would like to think of the Supreme Court, with its blindfolded lady holding her scales, as the place where justice gets done. Right now, the corporate system is enjoying the benefits of a Supreme Court majority for whom "justice" is what Thrasymachus declared in Plato's Republic: the interest of the stronger party.