11/05/2012 08:25 am ET Updated Dec 06, 2017

A Vote for Mitt Romney, Part 2

... is a vote to complete the takeover of America by big corporations. Consider the old-fashioned American notion of Justice.

If Romney has any authority in the Republican Party, he should immediately put a halt to the blatant effort to disenfranchise large numbers of voters. If he tries and fails, at least he gets three character points. As a corollary, it would also prove that the lunatics are, in fact, running the asylum. If he says nothing, or waffles, he should be viewed as an indictable co-conspirator.

Right now the corporatists ("corporate feudalist," as one of our correspondents presents it) dominate Congress via the simple expedient of brute force, aka money. Citizens United facilitates that. Add a corporatist to the White House who then turns a split Supreme Court into a solid corporatist majority and the takeover of the government by big corporations is complete. They will then turn there attention to the rest of us.

Jeffrey Toobin has argued that Chief Justice Robert's defection to what thereby became the majority opinion in support of the Affordable Care Act (ObamaCare) was Robert's clever plan to de-politicize the Supreme Court and thereby re-legitimize it after the twin judicial coups of Bush v Gore and Citizens United.

Our view is that a political decision to de-politicize the Supreme Court retains the stain of politics. We presented that view to Bob Monks, who's been an incisive critic of corporate power for decades.

[the transcript of this video is below]

I am deeply respectful of Bob Monks' intelligence and insights. I hope he's right. His is a more generous soul than mine.

To me, it is equally plausible that a clever and ruthless man would not want to waste a perfectly good "third strike." Why worry about health care when the White House is available? Why not present a respected reporter a well crafted tale about restoring the Court's legitimacy? Why worry about a third strike at all when you can eject the umpire.

This is not an abstract discussion. Given the uncertainties in the voting processes in Ohio and Florida (among many others), the legitimacy of the Supreme Court and of judicial processes is directly in our faces. If, God help us, the election is close and the result turns on states where Republicans have prevented citizens from registering to vote and registered voters from voting, the Supreme Court of the United States cannot be relied on to participate*, in any way, in resolving the outcome. That is a terrible state of affairs and it is precisely the case. Justice will not allow it. Nor, I trust, will the American people.

What does this have to do with big corporations? Consciously or not, John Roberts is their agent. The Citizens United decision is all the evidence necessary. It established both the rationale and the means for the corporate takeover. The next president will almost certainly be appointing new justices to the Supreme Court. That could complete the corporate takeover of our government. Mr. Roberts is very clever, but it will be a chilly day in hell when he convinces me that Justice has not chosen exile should this travesty come to pass.

Just this once, I really, really hope I'm wrong.


*--Originalists on the Court, if they are honest (they're not -- Mr. Monks' "madmen" is apt) would have to give up John Marshall's unsanctioned claim that the Court is the final arbiter of what is Constitutional. There is certainly nothing in the Constitution granting the Court the right to pick a President.

{Robert A.G.Monks/transcript}

I think you're hard on Toobin. I think what his point was is worth stating and to me, it's quite persuasive. Essentially, Roberts was faced with the proposition of being the third strike. Strike number one is Bush v Gore. Strike number two is Citizens United. Five to four decisions, with people, and as Toobin makes very clear, on the extreme like Scalia --Madmen! Madmen! -- are sitting there, saying in effect, "This is a conservative lock, I don't care what you do, this is going to go conservative." That is absolutely incompatible with a functioning Supreme Court.

So, yes. Yes. Roberts did make a political judgment. But the political judgment he made was in order to have a Supreme Court that had crediblity as a functioning component of the American democratic system. Because it was in danger of being marginalized. Much like cast away, you know, like Roosevelt cast aside the "nine old men" and tried to get a technique for putting in new people to change it around. All of which, you know, slowed up the process.

The American Founding Fathers were really very clever, one thinks. Because they were suspicious of power. And they kept setting up all of these various machineries,to avoid anybody getting too powerful, to be under the impression that they really knew what they were doing. They just wanted to slow down the exercise of power. Well, in doing that, the Supreme Court was a vast experiment. The Supreme Court in the Constitution is not given the power to determine the Constitutionality of legislation. Chief Justice Marshall assumed that power and he lasted for 35 years and so that became the law of the land.

So Roberts, in effect, is in ancient tradition. What he did, in a very simple way, was to rescue the Court from irrelevance. Now that is worth doing. Whether or not the gratuitous language that he then added in (which would have the court go back to essentially the Lochner era, which was a hundred years ago, when the Supreme Court said it was unconstitutional for the State of New York to limit the working hours of people in essentially sweatshops,) I mean, the language that Roberts tacked on to his opinion, which the liberal majority did not associate themselves with, they only associated with the tax piece of his opinion, it may be that Roberts wants to go in a different place that I wouldn't agree with. On the other hand, he did save the Court from being a subject of public ridicule.

After the Bush v Gore decision, it's virtually impossible to have any respect for the Court. And so I think on balance, we're better served by having a functioning Court, even if the seeds for bad decisions tomorrow have already been sown.