Pick a country and describe a sequence in which:
- First, a presidential election is decided by five people, who don't even try to explain their choice in normal legal terms.
- Then the beneficiary of that decision appoints the next two members of the court, who present themselves for consideration as restrained, humble figures who care only about law rather than ideology.
- Once on the bench, for life, those two actively second-guess and re-do existing law, to advance the interests of the party that appointed them.
- Meanwhile their party's representatives in the Senate abuse procedural rules to an extent never previously seen to block legislation — and appointments, especially to the courts.
- And, when a major piece of legislation gets through, the party's majority on the Supreme Court prepares to negate it — even though the details of the plan were originally Republican proposals and even though the party's presidential nominee endorsed these concepts only a few years ago.
How would you describe a democracy where power was being shifted that way?
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Underscoring the point, a Bloomberg poll of 21 constitutional scholars found that 19 of them believe the individual mandate is constitutional, but only eight said they expected the Supreme Court to rule that way. The headline nicely conveys the reality of the current Court: "Obama Health Law Seen Valid, Scholars Expect Rejection."
How would you characterize a legal system that knowledgeable observers assume will not follow the law and instead will advance a particular party-faction agenda? That's how we used to talk about the Chinese courts when I was living there. Now it's how law professors are describing the Supreme Court of the John Roberts era.
Make no mistake about it. This is an activist court. A court where the outcome is more important than following the law. I used to be in denial, even after Bush v. Gore. I thought that one case was an outlier (an important one, but still only ONE). I cannot believe that anymore.