When Courts Reign Supreme, Voters No Longer Matter

I was talking to a friend about infomercials. He said he

always watched them because he wanted to see what the producers would do to

hold his interest for 30 minutes. What has our five-week infomercial about

democracy taught us about the defects of our system?

The first defect is the judicializing of politics, for which

lawyers and judges are equally at fault. Several commentators have exhumed

Abraham Lincoln’s comments on the Supreme Court in his first Inaugural Address:

“[I]f the policy of the government … is to be irrevocably fixed by decisions of

the Supreme Court, the instant they are made … the people will have ceased to

be their own rulers.” Hasn’t it happened? Because we were uncomfortable having

a Presidential election decided by 0.3 percent of the electorate (Al Gore’s

margin over George Bush in the national popular vote), or 0.01 percent of the

electorate (Mr. Bush’s margin over Mr. Gore in the state of Florida), we gave

it to 0.00001 percent of the electorate (the nine justices of the U.S. Supreme

Court). At least when the Roman Catholic Church makes a really crucial

decision, there is no pretense of democracy-it’s all up to the Pope, and the

Holy Spirit.

Like the bureaucracy in a Kafka story, the courts surround

us in our daily lives. A jury frees O.J. Simpson. David Boies rebukes

Microsoft. Judge Judy tells us, “Don’t be stupid-buckle up!” All these are

acceptable situations, or at least situations we must accept. But when the

courts make our political choices for us, we have no recourse. The House, the

Senate and the Florida legislature can be dismissed in the next election.

Federal judges are immune to impeachment, unless criminal or disabled, while

state judges, who are often partisan elected officials, wear a borrowed aura,

like clothes handed down to younger brothers and sisters. If the parties, and

the branches of government, are nearly equal, let them duke it out, and let us

pass judgment on them afterwards. As things stand now, we are helpless.

The reason things reached this pass is that Al Gore brought

them there. In his determination to keep running, his Florida surrogates

launched the first suits that began the legal arms race. Their grounds of

complaint were that their will as voters had been frustrated. This is the

second problem exposed by the current crisis-the debasement of our notion of

popular will.

Americans will many

things, every day. When they want a new car, or a pack of gum, they spend some

dollars in a trillion-dollar economy. When they want solace, they pray. When

they want to sound off, they call a talk show. Elections are another expression

of will and opinion, arranged to serve society without producing tyranny or

chaos. Over the centuries, we have expanded the franchise to women, blacks and

18-year-olds. But we have retained numerous rules that function, in certain

respects, as restrictions. The most obvious is representation itself: We vote

for lawmakers, not for laws. Ross Perot suggested breaking through this barrier

by holding computerized referenda on important national questions. Mr. Perot’s

idea went, and deserved to go, nowhere, because instant mass voting leads not

to direct popular control, but to control by what Mencken called “corsairs of

democracy”-bullies, loudmouths, Caesars.

These figures always speak in the name of some aggrieved

class. The classes Al Gore unleashed in Florida were blacks and the old. Some

of his black allies charged actual intimidation; most, like the old, said the

ballots were too hard to use. So, if there is a noisy enough protest, we must

have repeat voting for the stupid. What would the aggrieved demand if President

Gore, or President Bush, thwarted their will? Why not a new election? Once we

start measuring popular intentions rather than popular decisions, then no one’s

intentions can come to fruition, because nothing is ever decided.

For five weeks, we saw our two would-be leaders in action.

We were not reassured. Thick-necked, pop-eyed, grimacing, like some wild

Claymation figure of himself, Al Gore seemed on the verge of actual lunacy. He

combined the micromanaging of Jimmy Carter and the self-righteous certainty of

Woodrow Wilson, thus joining the worst features of two of the worst Presidents

of the last century. George W. Bush kept himself in Crawford, Texas,

understanding perhaps the importance of what John Adams called “the gift of

silence.” But silence is effective only if it arises as an interval between

well-chosen words, or deeds. Mr. Bush had little to say even when he spoke. The

mood swings in the Republican camp, from confidence to panic each time a chad

or a judge inclined this way or that, also do not bode well for the future.

What would the Bushies say if a North Korean missile doodled into Tokyo?

To end on a somber note: Was it ever possible-is it still

possible-that the present crisis could raise, even in theory, the question of

the right of revolution? Americans can not shy from that question, since the

United States emerged from a revolution, and the right is acknowledged in the

Declaration of Independence (“it is the right of the people to alter or to

abolish” government). The republican form of government is a precious thing,

arguably as important as the right not to pay a tax on tea; if a coalition of

lawyers and mobs whisked it away, that would be a grave matter. Here we can see

the folly of Mr. Gore’s attempt to throw out military absentee ballots. The

army, George Washington warned, is nothing to play with. That goes for

bumptious Democrats and resentful Republicans alike.

The Declaration answers its own question. Americans, it

says, were justified in revolting only after “a long train of abuses and

usurpations,” intended to produce “absolute despotism.” So we can all calm

down. If somebody steals one election, that’s a bummer. If they steal three or

four, call back.

It is important to nail down the argument from prudence

because this election may be a harbinger of wrangles to come. America has had

periods of dead-heat politics before: From 1840 to 1852, and from 1884 to 1896,

the White House changed parties in four successive elections. During those

eras, Congress was also evenly balanced, with the Speaker of the House

sometimes being decided by one or two votes. Each period ended differently: The

second consolidated the post–Civil War party system; the first led to the Civil

War. We don’t have slavery to inflame us, but we do have lawyers and reporters.

Take a deep breath, and hold it until 2012.