Why do we regard the decisions of the Bush Court as legitimate or binding?
Cass Sunstein does some conservative framing on the Bush Court in WaPo today:
The most intriguing development on the Supreme Court this term has been the emergence of a powerful alliance between two different kinds of conservatives: the visionaries and the minimalists.
Justices Antonin Scalia and Clarence Thomas, the visionaries, are not merely predictable in their votes; their sweeping opinions call for fundamental changes in constitutional law. Chief Justice John Roberts and Justice Samuel Alito, the minimalists, have also turned out to be predictable in their votes. But their opinions tend to be cautious, narrow and unambitious. They are reluctant to reject the court's own precedents, and attempt to rule in a way that preserves them.
In every one of the term's key cases, including today's momentous decision on school-desegregation plans, the minimalists and the visionaries have agreed on the outcome -- but they have frequently divided on the reasoning.
Er, I've got minor editorial suggestion for Professor Sunstein, and that's that he use change "visionaries" to another word:
And that would be thieves.
The real nature and extent of any "vision" that Scalia and Thomas have was fully revealed in Bush v. Gore, where they stole election 2000 from Gore and handed it to the Republicans.
And why did Scalia and Thomas do that? Well, now it's obvious: They wanted more justices who would vote their way, and only a Republican President could do that. Easy peasy.
Why should we agree that a court so constituted is legitimate? The Republican seizure of the Supreme Court is just one more campaign in the long-running Republican coup that, with the acquiscence of some Democrats, replacing Constitutional government with authoritarian rule. (Just wait 'til we get the challenges to torture and executive power next term: The Bush Court wrote the manual on how to get away with it!)
I know that the "fruit of the poisonous tree" is a principle of jurisprudence that isn't directly on point for Supreme Court decisions, but in this case, Bush v. Gore--which I have no plans whatever to "get over"--is the poisonous tree from which all this weeks decisions stem. So, none of these week's decisions are legitimate, and no decision made after any members of the Bush Court were seated is legitimate.
Why should the Republicans be allowed to profit from theft?