• Michael Vlahos

Has the Court Too Been Sucked Into Civil War? (Et Tu Tribunus?)

The Supreme Court arbitrates disputes within the existing constitutional order. In pursuit of this mission, Americans have given nine justices almost unimpeachable authority. In the 20th century, the Court acquired a sacred place in the national firmament — like an American version of the Islamic Republic of Iran's Guardian Council — the final arbiter of what is constitutionally legitimate.  Inasmuch as open debate is an absolute necessity in a constitutional crisis, the postulation here is that the Court is NOT empowered to serve as the final, or even the first, arbiter of disputes outside of the constitutional order, or more precisely, of disputes within an order that is breaking down. The argument has three parts: 1) That a breakdown of constitutional order severely limits Court authority; 2) That Court intervention risks abrogating Court legitimacy; and 3) That for both (1) and (2), the Court will refuse to engage.

This is not to say that the Court has, in the past, refused to intervene decisively in potentially existential disputes within the constitutional order. Dred Scott v, Sandford (1857) and Plessy v. Ferguson (1896) were each decisions that wrought great harm to the constitutional order — yet each of these arbitrations was made in the context of an extant, working constitutional order. The same contours held true in Bush v. Gore (2000). Today, arguably, key elements of our constitutional order have already been rejected by formal Blue rhetoric as provisionally illegitimate. This means that until such time as they can be officially overturned, illegitimate elements should be treated in practice as suspended and without the force of law. Specifically, Blue has rejected the Electoral College, plus longstanding interpretation of the first and second amendments, and the current status of 50 year old civil rights legislation. The most imminent and urgent goal of Blue is now dual nullification: 1)  Derailing a Red Court appointment, and 2) Overturning a Red election outcome. This is the face of our constitutional order breaking down before our eyes. The Court is a passive participant in the appointment of a new justice. Yet the justices must know that — however the issue is decided — half of America will cease to trust them. Hence, whatever happens, the Court will have effectively lost its precious halo of legitimacy. This means that when the disaffected and "betrayed" moiety of the electorate — the other of America's two opposed parts — again takes power, that the Court as now constituted will end. Fifteen justices and mandatory retirement at 70, or whatever else will be decreed, means simply that the Court's place in America's sacred trust — not to mention its decisive influence — will be gone. Hence, an already gun shy literally! — and highly risk-averse judicial body will certainly recoil in horror from any role in a post-November election crisis. Inasmuch as a pre-election bloodbath over Court succession is politically (and religiously) inescapable, a Supreme Court missing in action after November will necessitate a resolution of the election crisis without the aid of the Court. Simply, this means that there will be one less tool available to shore up a crumbling constitutional order. Going further, what is also inescapable is that the Court's role in the crisis — by definition — will have shifted from the imperfect yet still-hallowed agent of resolution (as it was in Bush v. Gore) to a central agency — think, Dred Scott! — of conflict itself.

A repeat of such tragic irony may be bitter for us to the taste, yet we deny its apprehension at our peril!

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