LARRY KRAMER ON REACTIONS TO BUSH V. GORE

Good passage from The People Themselves on reactions to Bush v. Gore:

One need not take sides on the merits of the case to see that public reactions to the Court's decision cannot be explained as a matter of widespread indifference, much less political consensus. Nor is it anachronistic to observe that if the Supreme Court had stepped in this way when Hayes and Tilden deadlocked in 1876, the half of the country that supported the loser would not have stood passively by. They might have attempted to impeach the Justices or to impose new responsibilities designed to make their lives miserable (as Jefferson did). They might have sought to ignore or frustrate the Court's judgment (as Jackson and Lincoln did). They might have moved to slash the Court's budget or strip it of jurisdiction (as the Reconstruction Congress did and Roosevelt tried to do). They might have done any number of things. But they surely would have done something: something other than submissively yield while explaining that to challenge the Court would look unpatriotic. Which is why, of course, no one at the time of this earlier election -- on or off the Court -- ever dreamed of trying to resolve it in litigation.

The reaction to Bush v. Gore is merley suggestive, moreover, of a larger point. It could well be that a majority of the country presently supports what the Rehnquist court is doing. That still does not explain why all those who disagree, and disagree strongly, nevertheless feel constrained passively to accept the Court's rulings while waiting for the Justices to die or retire in the hope they can be replaced by judges whose views are more sympathetic. Nor does it explain why someone like Patrick Leahy thinks it is his duty "as an American" to affirm that decisions of the Supreme Court are "the ultimate interpretation of our Constitution" no matter how wrong he thinks they are.

What presumably does explain facts like these is the broad change in public attitudes toward the Court that occured in the latter half of the twentieth century. Where most people's unarticulated, intuitive sense in earlier generations presupposed the rightness and naturalness of popular constitutionalism, today that sense has switched to favor judicial supremacy -- a turnabout in beliefs with effects across the whole political and ideological spectrum.

(231-2, footnote omitted). If you want more, you'll have to read the book. It's great.

I wonder if it is possible to link the apparent public acceptance with of judicial supremacy to the late twentieth century decline in social capital (as described by Robert Putnam)? It would make sense: popular perceptions of public activity -- and its expression in popular constitutionalism -- should be responsive to individual experience with public activity, i.e. to social capital on the ground. If you don't combine with your fellow citizens, you don't trust them in general. Why should you trust them to engage in something as apparently specialized and sacred as constitutional interpretation?