(SMIRKINGCHIMP.COM) – In the same way that countries like Libya are “failed states,” the U.S. Supreme Court is a failed institution. Always partisan, either mainly or partly, its authority – meaning the people’s acceptance of the validity of its rulings – rests on a kind of momentum, a belief that despite its long history of missteps (Dred Scott and Plessy v. Ferguson, to name just two) the Court can be trusted, in time, to self-correct.
That the Supreme Court was failing its constitutional role had been clear to close observers since the 1976 decision in Buckley v. Valeo, which ruled that election spending was “speech.” Yet despite the numerous bad decisions that followed, the momentum of belief—and the illusion that Anthony Kennedy represented a “swing vote” on an otherwise ideologically balanced bench—has kept most Americans, if not blind, then unnoticing of the modern Court’s deadly defects.
The first real crack in the dam of faith occurred with the Bush v. Gore decision, in which a nakedly partisan majority installed a losing presidential candidate in the Oval Office simply because it could, using only its authority, and not the law, as justification. Later decisions like Citizens United put proof to many people’s suspicions that the Court was an operative in a war for political control and no longer a place where law, even bad law, had a place.