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Opinion: Supreme Court is No Longer Part of the Solution

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A person carries an American flag while marching in favor of the Patient Protection and Affordable Care Act in front of the U.S. Supreme Court.

Conservatives will say that liberals started it with the activist decisions of the Warren Court, by "borking" Robert Bork and through the "high-tech lynching" of Clarence Thomas.

Liberals will say conservatives did through the mechanism of the Federalist Society, outrageously unprecedented decisions like Bush v. Gore or anti-precedent judgments like Citizens United, and the appointments of conservative activists whose presence at right-wing strategy sessions and refusal to recuse at critical moments reveal their partisan stripes.

A historian might argue that both sides wax nostalgic for a golden era that never existed, and that the Supreme Court has always been an extension of the political sphere with a history that includes Plessy v. Ferguson and FDR's court-packing flirtation.

Whoever is to blame, it's clear we have to rewrite that section of the American civics curriculum that describes the judicial branch as source of impartial wisdom whose judgments and motives Americans trust as existing above the political fray.

The Supreme Court's approval ratings is sinking among the American electorate, and Monday's decision to refuse to hear the Montana appeal to the Citizens United decision will only contribute to the decline. At a time when the public feels there is far too much money in politics, and as we move through a campaign season of unprecedented contributions of corporate money - secret and otherwise - the court is viewed as contributing to, not solving, the challenges to our democracy.

And that's even before the Affordable Care Act decision comes down, destined to anger one side or the other.

As a result, to a degree as great as any time in history, court appointees are going to be an issue in this presidential election. Candidates are always asked to name Justices they admire; this time around, voters may actually listen to the answer.

This may help President Obama. Right-wingers have always been fired up about the courts and aren't voting for the president anyway. But more moderates are, for the first time, realizing long-standing precedents could be discarded in the hands of a conservative court. Romney will appoint more justices that affirm the ability of donors to flood democracy with their money, and likely to peel away reproductive rights if they have the chance. Obama's appointees won't. It's a pretty simple contrast.

We might wax nostalgic for the world of the impartial jurist that our history teachers told us existed. Remember that episode of West Wing where President Bartlett appointed a liberal and conservative at the same time because he respected their intellect? Well, fiction is fiction and history is history (or maybe fiction as well), and neither are the case right now.

The last decade began with the Court ordering a state to stop counting votes and ended with the Court repealing a century of precedent governing political contributions. Imagine where the next decade could go. And when you're talking lifetime appointments, a decade is nothing - think in terms of generations.

In some ways, it's unfortunate that whatever the decision in the ACA, the public will view it as a political decision - unfortunate because having some naive faith in public institutions is a part of our civic identity.

On the other hand, maybe there is a silver lining. However the Court rules, it means the public will be asking the presidential candidates whose judgment they trust - and judging the candidates based on their answers.