I don't think that either Justin or I ever were part of the choir on that point, but did believe that the conservatives on the Court would not sacrifice their total intellectual credibility for a naked partisan gain. We were apparently wrong and Scalia et al have made the pragmatic partisan decision to make sure that they keep their numerical majority on the Court by installing Bush, the credibility of the Court and their judicial philosophy be damned. I saw one conservative Bork supporter sputtering about how the injuction shutting down the vote count was as complete a betrayal of principle and as large a judicial overreaching as he could imagine.
But let's be clear. This is not a coup d'etat but merely the reality of existing power relations coming to the surface- the partisan power of the Court stepping into the limelight from its usual self-effacing mumbo-jumbo. The irony of course is that the nature of the Supreme Court is such that such a visible exercise of partisan power inherently diminishes its exercise and credibility in the future - which is what makes the overreaching gambit by Scalia et al so fascinating. Given the fact that the Supreme Court will have delivered the Presidency to Bush, every Supreme Court decision will be understood in that light from now on and every judicial appointment will be fought over with naked partisan mobilization, since it is now clear that who is appointed matters for every other partisan result in our electoral system.
Which is great! Anything that strips the illusion of impartial legitimacy from the organs of power is a gain for progressives seeking to organize against that establishment. Blacks, latinos, the elderly, the disabled - those immediately disenfranchised by this latter-day Jim Crow Court are only the most obvious candidates for questioning the fundamental legitimacy of our whole corporate-dominated system.
Now, folks can sit on the sidelines and just say this is just an internal fight between capitalist parties or you can recognize that, in however fucked up and partial a way, the Democrats have been and continue to be the vehicle for the self-empowerment and enfranchisement of a whole range of interests and groups in our society, and that the corporate Right decided that this process needed to be turned back in this election. A lot of the Right is seeing what's going on in California, as latinos and other non-whites have become the majority and the radical changes in politics that are underway, and they fear the future as this process extends on to other states and across the country.
The fight over who is a citizen, who is enfranchised to vote, and the whole gambit of "electoral profiling" to shut down the voting power of the excluded is the chasm of conflict that has been revealed in this election. And it's not going away. The Supreme Court needs to jump in to stand square against the right to vote and have your vote counted, because we will see a whole onslaught of subtle and possibly not-so-subtle attempts to deny the right to vote to all sorts of groups in coming years. So the best way to understand the Court's action is as a sacrifice play - trade off credibility on a whole host of other issues in order to try to win on the most fundamental issue and always the issue in our partial democracy - who is a citizen and who shall rule along the color line of capitalist America.
-- Nathan Newman