Consequences

The Supreme Court is lost. Of course, we we fairly certain of that in November 2004. We knew it for sure after the worthless "Gang of 14" made the loss complete. Today, we can see the results of such a momentous failure.

It's hard for DB to decide which is the worst opinion of the term. The "Bong Hits 4 Jesus" case is clearly the most illogical. Today's decision on school desegregation is the most dispiriting. The McCain-Feingold and faith-based decisions were disappointing, but unsurprising and based, at least, on a consistent application of the law on the part of the majority.

Chief Justice John Roberts (and Justice Alito) both said they respect stare decisis, but that was clearly a distortion. They respect precedent only in the context of what things were like before cases were settled in ways in which they did not appreciate. President Bush said he wanted judges like Clarence Thomas and Antonin Scalia, and he got them.

Thomas, of course, told the Senate that he had never thought about Roe (an unbelievable claim) and then, as a Justice, stated that it was wrongly-decided. Scalia's willingness to violate his own rules in order to reach the decision that pleases him is well-documented.

The Roberts Court is not only failing America; Roberts is failing to meet the expectations he set for himself. Norman Ornstein says it quite well:

He did seem to be someone who would be respectful of stare decisis and would move to change the court in small steps, using a more consensus-driven approach, looking for narrow solutions that could command 9-0 or 8-1 decisions, rather than 5-4 votes. Such narrow decisions ultimately erode the legitimacy of the Supreme Court because they underscore a sense that rulings are not driven by careful adherence to law and precedents but by the political calculus, based on who retires and which president gets to make the replacement.

In his initial service on the court, I was encouraged that Roberts would fit that institution-building mold, working with a like-minded institutionalist on the other side of the philosophical divide, Associate Justice Stephen Breyer. Now, with the decisions this week, I see that I was wrong. We have fallen into a pattern of key decisions that come down 5-4, with Roberts and the more rigid Samuel Alito joining Antonin Scalia, Clarence Thomas and Anthony Kennedy to throw out precedents established only a few years ago, all driven not by changes in the law or objective deliberations over facts, but by the simple fact that Sandra Day O'Connor left the court and was replaced by a more conservative justice.

The good news is that these 5-4 decisions carry as little weight as possible (I know, that's not much silver lining) and Justice Kennedy's opinion actually does a little bit to protect affirmative action. The bad news is that we're stuck with this court for a long time and it could possibly get worse.

Thanks a lot, Joe Lieberman. The next time this blogger hears you talk about being a Freedom Rider, I hope somebody asks you why you helped destroy Brown v. Board of Education.