Obama Nullification and the Coming Supreme Court Nullification Movement
We can pinpoint the moment when Republicans stopped buying into our 230 year national experiment in democracy. It was August 29, 2008 when John McCain introduced Sarah Palin to a national audience. All pretense of being a “loyal opposition” that could operate under the written and unwritten rules of “deference to the office” and compromise for the sake of the common good went out the window then the Tea Party was legitimized by the GOP.
From that moment on we’ve had a Republican party that does not view any of the actions of our duly elected President as legitimate, and has therefor dedicated itself to an ongoing policy of electoral nullification. The obvious current manifestation of that policy if the denial of a Supreme Court nominating hearing. This isn’t some secret skulduggery. It is happening right out in the open. And that raises the question, what’s next? What happens when the next President is elected? And let’s suppose that the next President isn’t a Republican. What does this policy of nullification look like in Secretary Clinton’s, or Senator Sanders’ first term?
My guess it that it goes on and expands to a general nullification of the legitimacy of the Supreme Court. As it unfolded, the nullification of Obama’s term was rationalized as an acute rather than a chronic malfunction. It has been described as “Obama derangement syndrome” or viewed through the lens of race, with the a generally accepted (if largely unspoken) sense that when a white person returns to that office, things will go back to normal. But does anyone still think that one year into this GOP primary season? Listen to Rubio, Cruz and Trump talk about Hillary Clinton and you know that regarding the Obama years as a crazy interregnum is fantastical thinking. Nullification as a strategy has taken root.
The new normal for the American right wing is “elect a GOP President or else.” That’s what is at the heart of this current anti-constitutional movement to deny Obama a Supreme Court nominee. It isn’t so President Hillary Clinton, or President Bernie Sanders can have the next pick. It is so the next conservative Republican President can have the next pick and thereby maintain the Court’s 5 to 4 legitimacy. Any other outcome is invalid at the outset.
Whether or not a democracy can survive such a state of affairs probably comes down to one simple question. Which will die first, the Republican Party, or American democracy?
The highly politicized Supreme Court functions as the upper house of a tri-cameral legislature, which can deny the passage of laws enacted by the other two. So long as elites on both sides view it as a needed check on democracy (the role formerly played by the Senate prior to the passage of the 17th Amendment) that they can game and in which they can get the upper hand, it will retain legitimacy. Once that stops, we’ll probably start to see Andrew Jackson style defiance of the court, and it may become irrelevant.
Thanks for making my point. There are brazen right wing partisans on the court (one fewer of late), but as much as you may want to think so, this isn’t a “both sides do it” situation.
jason my only bone to pick with your argument is that this is cyclical–we reach this level of dysfunction every so many decades. Think about it: you couldn’t call it “nullification” if there hadn’t been an original Nullification crisis that almost led to a civil war in the early 1830s. So much of this stuff is cyclical: Bush v Gore in 2000 meet Hayes v Tilden in 1876. And if you’re looking for some important comparisons to this year’s election, consider a mash-up of 1892 and 1896, or even 1912.
The Republican establishment has merely repackaged John C. Calhoun’s concept of the “concurrent majority” into modern times; the GOP coming apart? Look no further than the disintegration of the Whigs and the rise of original Republican Party from 1850-1860.
Yes, this is a test of American democracy, but it is less of a singular existential crisis than it is a recurring exam.
Thanks for the perspective. I’ll have to read up on disintegration of the Whigs, and comfort myself with comparisons to the GOP.
That’s concise, relevant professor shit. Context is key.
And jason, when you read about how the party of Henry Clay degenerated into the party of Winfield Scott, remember that the ultimate outcome of the dissolution of the Whigs was the election of Abraham Lincoln and the end of slavery.