MB Civic

By Robert Kuttner  |  July 1, 2006  |  The Boston Globe

THOSE WHO CARE about the Constitution and the fate of American democracy should go easy on the champagne.

Yes, it was immensely reassuring that the Supreme Court, voting 5 to 3, held that President Bush lacked the authority to create military trial commissions by executive fiat, bypassing both Congress and international law. By extension, the court challenged Bush’s entire theory of extra-constitutional wartime powers as commander-in-chief.

One might reasonably expect the same court to overturn Bush’s bizarre use of “signing statements” that allow him to accept parts of laws he likes and reject the rest, in violation of the American system of government; and his contention that wartime powers allow the government to spy on Americans without a warrant, in explicit violation of laws passed by Congress on that exact question.

But this slender victory for constitutional democracy is nothing like the high court’s 1974 ruling, 9 to 0, compelling Richard Nixon to turn over the Watergate tapes. It is crystal clear from the dissent that a hard-core bloc of four justices will defer to Bush, whatever the cost to the Constitution. Chief Justice John Roberts, the missing fourth minority vote in this week’s Guantanamo case, had voted while an appeals judge to approve Bush’s claims.

The rule of law now hangs by a thread. It depends on the health of an increasingly frail 86-year-old Justice John Paul Stevens, and the willingness of the Court’s inconstant swing vote, Anthony Kennedy, to side with the Constitution.

The Court required military trials to follow due process, but did not challenge Bush’s doctrine of indefinite detention for “enemy combatants.” In a concurring opinion, Justice Stephen Breyer wrote that “nothing prevents the president from returning to Congress to seek the authority he believes necessary.” The risk is that the Republican Congress will take that invitation literally. Congress could legislate military tribunals. Republican leaders are working on legislation to explicitly legalize domestic spying. And with Bush pressing for a line-item veto, Congress could also authorize something close to Bush’s signing statements.

The threat is not just autocratic presidential power. Democracy itself is under assault in the form of voter suppression that leads to stolen elections. Ken Blackwell, the Republican secretary of state in Ohio who flagrantly denied adequate voting machines to Democratic precincts in the 2004 election, is now running for Ohio governor while retaining his post as the state’s chief election officer. There is nothing to prevent him from playing the same games, this time on his own behalf.

With increasingly partisan courts, there is no one to complain to. The same Supreme Court has just affirmed, 7 to 2, nearly all of Tom DeLay’s Texas gerrymandering play. Ordinarily, the Civil Rights Division of the Department of Justice would provide an avenue of redress. But the Bush Justice Department is increasingly complicit in suppressing voters, not defending rights.

If American democracy is to survive, Congress, as well as the courts, needs to rein in this president. But Congress has typically put partisanship ahead of constitutional democracy. This week, Republicans were far more eager to defend the flag than the Constitution.

Observing the confirmation hearings on Roberts and Samuel Alito, despite the coy charm displayed by these two hard-right jurists, no reasonable person could doubt that both men would become rubber stamps for the White House and its extraconstitutional claims. Many so-called moderates, nonetheless, voted for them, and for Roberts by an overwhelming margin. If Stevens retires or dies soon, it’s still not clear that Republican moderates would raise the bar and demand someone other than a fifth hard-right conservative. The Bush era has been a slow-rolling coup d’etat. People are afraid to say so, lest they look like extremists. But the real extremists are in the White House. If our democracy slips away, it will be because its defenders were irresolute and in denial of what is plainly occurring. And if our democracy ultimately survives, it will have been a very close call.

The ultimate protection of democracy, of course, rests with the voters. Because of gerrymandering, lack of court protections of voting, and scoundrels like DeLay and Blackwell, the opposition needs to win by several points to overcome the margin of fraud. Only when Bush and his allies are soundly repudiated at the polls can we rest a little easier.

Robert Kuttner is co-editor of The American Prospect.