Fallows fears that the GOP, in alliance with a GOP-packed Supreme Court, is subverting democracy:
[W]hen you look at the sequence from Bush v. Gore, through Citizens United, to what seems to be coming on the health-care front; and you combine it with ongoing efforts in Florida and elsewhere to prevent voting from presumably Democratic blocs; and add that to the simply unprecedented abuse of the filibuster in the years since the Democrats won control of the Senate and then took the White House, you have what we'd identify as a kind of long-term coup if we saw it happening anywhere else.
He follows up here. I agree that the Supreme Court – after Bush vs Gore, its modernist interpretation of the Second Amendment and then the coup de grace of Citizens United – is in one of its more aggressively political modes. It's also become trashier: Justice Scalia's dissents are perfectly at home on the Rush Limbaugh show at this point. And all this will not help the Court if it strikes down the Affordable Care Act with a similar partisan rhetorical flourish, or on flimsy, clearly partisan grounds.
The problem with these characterizations of the court is that if by “judicial activism” one means a willingness to overturn precedents and invalidate federal laws, the Roberts Court is the least activist court of the post-war period. As a recent NYT analysis showed, thus far the Roberts Court has overturned prior precedents and invalidates federal at a significantly lower rate than its predecessors.
And when you look back at how the Court tried to sabotage the New Deal under Roosevelt – under far more desperate economic circumstances – you see that naked politics has never, alas, been absent from the Court. What's different now is a reversal of roles in which the president is acting according to the old norms and the court is actively reactionary. Under Roosevelt, the Justices were being conservative, trying to preserve the old order under radically changed circumstances. Under Obama, they are reactionary, seeking to undo a century of precedent for federal power. If the ACA is struck down on these radical new grounds, the stakes will be very clear. If the Tea Party keeps control of the GOP and the GOP wins another presidential election under Romney, the next appointees are likely to be more radical still. If there's one thing Romney will aggressively pander on (is there anything he won't aggressively pander on?) it's the Court.
So this is not a coup. It's just the system at work, when one side has gone rogue. When that happens, the answer is not to call the refs but to win the presidency and win back the Congress and reshape the court through the constitutionally appropriate way: by appointing new Justices. After his disastrous attempt at Court-packing, that's what FDR did. It's what Obama has to do. He's in that rare position of being a president whose entire legacy depends upon being re-elected. And as each day passes, the historical importance of that re-election becomes clearer.