Democratizing the Court—and the Entire Body Politic

John Buell is a columnist for The Progressive Populist and teaches at Acadia Senior College. His most recent book is Politics, Religion, and Culture in an Anxious Age.

Senate Majority Leader Mitch McConnell treats the exercise of the democratic right peacefully to assemble as mob rule. This exercise in democratic liberty that McConnell abhors has been necessitated because our democracy is seriously flawed—thanks in part to the anti-democratic coups McConnell’s party and its allies have orchestrated. 

The Supreme Court, though still the most respected of our institutions, is a major force adding to systematic injustice. How the Court has become so influential  and so dangerous is a topic deserving much more attention than it receives.—especially if we hope to mitigate the damage.

One perhaps fortuitous outcome of the Kavanaugh confirmation may be the recognition that the Supreme Court is inherently political. The Court has inordinate power now, but we have chosen to give/allow that power. Potentially the view five justices hold regarding “interstate commerce” or “due process” could determine the fate of vital regulation for a generation to come. No serious democracy can surrender so essential a policy matter to five lifetime appointees to a tiny body largely shrouded in mystery.

Democrats themselves played a high price for so much reliance on the courts to achieve their goals. This was especially the case regarding abortion. Initially enacted in a few states, activists pushed successfully for a Supreme Court ruling to extend reproductive rights to all states. Nonetheless as Brown University political theorist Bonnie Honig pointed out: “Disempowered by their that the law had settled the issue without remainder, they failed to engage the concerns of moderate citizens who harbored doubts about the morality of abortion leaving them and their doubts to be mobilized by those who had no doubts about the practice’s immorality…”  Honig goes on to add: "…the always imperfect closure of political space tends to engender remainders and that, if those remainders are not engaged they may return to haunt and destabilize the very closures that deny their existence” (Political Theory and the Displacement of Politics, p. 15). I would only add that in a political culture that professes its faith in democracy remainders denied their day in the political arena are likely to become more intense and dogmatic and able to attract some support based on their exclusion alone.

Abortion along with other social issues helped politicize a whole generation of formerly apolitical fundamentalists, and reliance on the courts has left pro- choice liberals the necessity of playing catch-up ever since. In any case abortion rights won through the courts still cannot assure provision of the whole infrastructure of services and abortion alternatives needed if women were to have the resources and options to make a truly free choice. Republicans have been masters at chipping away those necessary prerequisites.  Their performance reminds me of Andrew Jackson’s s line in a Native American land case: "John Marshall has made his decision, now let him enforce it."

In pursuit of all their political goals Republicans have generally been more aware of the crucial role played by the states and other power centers in our federal system. They always pursued a multi- front strategy, relying on the courts as backstop for their corporate agenda but also systematically targeting state government, media, university boards, and federal legislative agendas. 

Yale Law professor Sam Moyn argues: “According high stakes decision making to judges is most definitely not inevitable. The contingent situation of the United States where conservative and liberal elites jockey above all for the power of constitutional fiat the better to encode their policy views in fundamental law — saving themselves the trouble of popular approval and entrenching them against it — is not working well for progressives. Our response to Kavanaugh is therefore to abandon all hope that the empowerment of the higher judiciary serves good outcomes, or even provides a bulwark against terrible ones.

The neoliberal courts will be especially useful in sanctifying incursions by Republican ground troops. It is a mob if your ideological, partisan political opponents are protesting, however peacefully. It is “there are some good people on both sides” if your partisans and ideological supporters are roughing up your political opponents. I don’t remember any condemnation of the rough stuff Republican ground troops employed to block the 2000 Florida recount. George W Bush was the beneficiary of a coup staged by five Supreme Court justices and a group of paid thugs.

Pundits today talk of gridlock, and some see this gridlock as providing an opening for or demand of those two independent, largely opaque bodies, the Federal Reserve and the Supreme Court, that they enact a constructive, “moderate” agenda. I see both as instruments of a neoliberal consensus shared by most centrist Democrats and business- friendly Republicans. This consensus is the source of desperation and anxiety of many poor and working class citizens. This consensus includes insurance industry sponsored health care, military expansion, corporate controlled labor markets, financial deregulation, further corporate consolidation, Social Security and Medicare privatization, and bank bailouts., fossil fuel subsidies, further tax favoritism of the rich, and deregulation and decriminalization of environmental and workplace abuses. All these are to be backed by a heavily militarized police.

These priorities are not shared by a majority of Americans. The priorities are being advanced by corporate lobbies and with the collaboration of a court system that has been packed with socially conservative neoliberals.  The fight over Kavanaugh is over, but absent progressive narratives and agendas more working class citizens will add fuel to the authoritarian demagogue’s dangerous coalition. It is time to learn from Republicans.  Winning the next election—at all levels – is crucial.  If Democrats win in 2018 and 2020, progressives within the Democratic Party should not hesitate to advocate packing the court. As with FDR in 1937 Left Democrats should argue: they are merely making up for prior Republican manipulation. And they could follow FDR’s assertion that “there is no basis for the claim made by some members of the Court that something in the Constitution has compelled them regretfully to thwart the will of the people.” It was necessary, he argued, to change the Court “to save the Constitution from the Court”–save it as a document of democratic self-rule (I am quoting Jedediah Purdy, who is quoting FDR).

The suggestion will doubtless be rejected by the party’s still dominant neoliberals. Its advocates will be reminded that the Court pack scheme represented a major setback for FDR. In fact the historical record is ambiguous. Following defeat of the Court reform proposal no subsequent New Deal legislation was declared unconstitutional. Merely planting the idea might remind citizens just how political that body is.  

The problem with the court is not that it is political. Its politics are antithetical to democracy. This rigidly reactionary bias, however, does not mean the Democratic left should pay no attention to the Court. Given the central, almost iconic place of the Court in popular consciousness, neglect of the Court would be as much of a mistake as exclusive reliance on it. Duke Law professor Jedediah Purdy argues: "the way to address politicization…is not de-politicization but counter-politicization, which I think is the lesson of history. I’ve argued for a jurisprudence that picks up new politically led awareness of the absolute importance of ballot access, the centrality of economic power to law and social order, and the urgency of addressing structural racialized inequality, the carceral state, and the special vulnerability of non-citizens."

 

Such a jurisprudence is more likely to assume prominence as part of a broad political movement operating in many venues and employing a range of nonviolent strategies and tactics. The Court can inflict its damage only if the many of us who will be injured by its actions fail to collaborate and organize against its destructive pursuits.

John Buell — Liar, Liar, Pants on Fire: Exxon, Neoliberalism, and the Climate Crisis

John Buell is a columnist for The Progressive Populist and a faculty adjunct at Cochise College. His most recent book is Politics, Religion, and Culture in an Anxious Age.

After investigations by Inside Climate News and the Los Angeles Times showed ExxonMobil’s own scientists recognized the risks of burning fossil fuels in the 1980s., the company faced harsh criticism even from some shareholders as well as possible legal action. Yet remarkably even in the face of these revelations Exxon continues to fund climate science denial. Recent recipients include such stalwart denialists as the American Enterprise Institute and the American Legislative Exchange Council (ALEC).


My initial reaction to this story was the famous Upton Sinclair line: “It is difficult to get a man to understand something when his salary depends on his not understanding it.” But there is much more than simple greed in Exxon’s actions. Understanding the broader context of Exxon’s malfeasance is one clue to a more complete recognition of the harm it has inflicted. Exxon’s early climate science denialism took place within an emerging neoliberal rejection of the New Deal and post World War II capitalism. Among other changes, emergent neoliberal capitalism altered earlier notions of corporate responsibility and not only restored but deepened and extended faith in the market.  As always, Milton Friedman provided the baldest defense of this position: “The businessmen believe that they are defending free en­terprise when they declaim that business is not concerned “merely” with profit but also with promoting desirable “social” ends; that business has a “social conscience” and takes seriously its responsibilities for providing em­ployment, eliminating discrimination, avoid­ing pollution and whatever else may be the catchwords of the contemporary crop of re­formers. In fact they are–or would be if they or anyone else took them seriously–preach­ing pure and unadulterated socialism. Busi­nessmen who talk this way are unwitting pup­pets of the intellectual forces that have been undermining the basis of a free society these past decades.”

Friedman himself reflects and helped develop a view of the market that goes beyond even Adam Smith. Smith saw markets as instruments for the allocation of physical goods. Neoliberals up the ante. Markets are viewed as perfect self-organizing systems and ideal information processors, able to solve an indefinite range of social problems.  As one neoliberal advocate puts it, “markets are superb mechanisms for the delivery of information, as they capture a huge array of information and make it available in a single price…Even unknown unknowns are quickly revealed in market   prices. “  What conventional moralists might regard as lies are perfectly okay. They represent the interest of one market participant and are fully balanced by other interests in the marketplace of ideas.  Furthermore, as both Johns Hopkins political theorist William Connolly and Notre Dame historian of economics Philip Mirowski point out, modern neoliberalism differs from its classical predecessor in acknowledging that markets do not emerge spontaneously. They must be imposed. Toward this end, neoliberals develop an exoteric version of their worldview for public consumption while articulating an esoteric version among themselves.

That markets can serve as information processors in certain domains and time frames does not establish their universal validity. Markets are not the only self-organizing systems in our universe, and, as Connolly puts it, economic markets are “more fragile, interdependent, and volatile than their most fervent supporters imagine.” Their evolution can just as easily lead to system threatening crashes as to a higher rationality. Models based on this ideal failed to anticipate even the possibility of a market crash, let alone its timing.

Exxon’s Lies and a Word from the Pope

Viewers of the recent Olympic games were treated to another deceptive effort by Exxon to rebrand itself as a responsible corporate citizen. The neoliberal worldview—often called the Washington consensus-- has done far more to damage the environment than Exxon’s lies about climate change.

Consider the infamous cap and trade. As Mirowski, points out, most neoliberals never believed in their own denialism. It was a strategy to fight off regulation and to find a market-oriented approach to the problem. A market in transferable permits for allowable levels of carbon emission seemed the ideal neoliberal solution. From the start the market has been dogged by the failure of enforcement mechanisms. More fundamentally markets for carbon permits interact in destructive ways with security and consumer markets. When the world financial market collapsed, coal prices and the price of carbon permits declined, thus removing any incentive to move out of this noxious fuel. Finally, when such dangerous and uncertain programs as cap and trade, financial deregulation, or off shore oil production blow up, as they inevitably will, clean up costs are largely dumped on the public. Then when government debt grows, this phenomenon is taken as proof of government’s overreach.

Shareholder value and the deification of the market thus are only one of neoliberalism’s inegalitarian thrusts. These would include a commitment to fiscal austerity, and privatization of key state resources.

Implicit in these concepts of market fundamentalism, austerity, and privatization is a dangerous contempt for democracy and the role of the state in markets.  In the marketplace of ideas, dollars vote. Some ideas are therefore more equal than others. In this regard Mirowski cites one of the central esoteric tenets of the neoliberals: This is Friedrich Hayek on the popular will: “if we proceed on the assumption that only the exercises of freedom that the majority will practice are important, we would be certain to create a stagnant society with all the characteristics of unfreedom.”

Taken together, austerity, privatization, and periodic financial bubbles and crises and the hollowing out of democracy have driven a fierce turn toward socioeconomic inequality.  Inequality in turn places pressure on the environment along several pathways. Inequality isolates the rich.. The poorest—and especially minority groups--are virtually disenfranchised and left vulnerable to accepting the blandishments of the oil giants. To paraphrase Rousseau, inequality has reached the point where a substantial part of the population no longer has the resources to participate effectively whereas a tiny minority thinks it has the affluence and power to escape social problems.

What about those in the shrinking middle? Workers face longer hours in highly inegalitarian work places, exacerbating pressures to keep up with the higher ups Here is Connolly from a prescient passage in a 1995 book, The Ethos of Pluralization: “The American Political Economy is built around the illusory promise of universalizing exclusionary goods. As it becomes increasingly clear to a variety of constituencies that they are losing ground in this elusive quest, they either drop out of institutional politics or vent their anger on the most vulnerable scapegoats available.”

Despite these chronic problems, shareholder value, austerity, and the magic of the market are so common today that they are taken as axioms of modern societies. Mirowski calls this phenomenon everyday neoliberalism. Yet neither law nor economic history affirms the validity of the neoliberal creed.  A corporation’s obligations are to its consumers, workers, and the larger community. Corporations are granted special privileges—by governments-- but accompanying these privileges are obligations. The shareholder is owed corporate honesty but only residual earnings after responsibility to workers. Consumers, and the community are met.

Adequately addressing Exxon’s lies involves more than punishment of the perpetrators. Market fundamentalism must be challenged, and the finance industry curbed. That sector breeds instability and sucks away talent and resources from the productive economy. Safety nets, including especially unemployment compensation, must be preserved and strengthened, precautions against at least some of the volatility of modern society. Proactively ambitious spending is required to meet a climate emergency.  Declaration of a climate emergency should also include recognition that many poor and minority communities have been treated as sacrifice zones that must bear the burdens of what Naomi Klein calls the extractive economy. Proper attention to this phenomenon—including disproportionately generous funding-- and recognition of the role that these communities have played in resisting extraction’s excesses might blunt some of the racial antagonisms that have bedeviled progressive politics.

In this connection progressive must consider some fundamental dilemmas of coalition building. University of Texas Economist James Galbraith spoke of a “Keynesian devolution,” a set of policies that combined public spending, tax incentives, planning and regulations, and private investment in transit and suburban housing. This combination brought us the relative prosperity of the post World War II era. We need comparable programs to revamp transportation, urban planning, and the energy infrastructure to meet our current crisis.

Meeting these needs, however, requires addressing a persistent paradox. An ambitious progressive agenda might reduce social tensions and the inclination to demonize, but current racial and religious divisions impede enactment of such a program.

Some progressive Democrats are aware of this tension, but their approach is at so high a level of abstraction as to leave as many questions as answers. Consider this section from the party’s environmental platform.

- Democrats believe that cooperation is better than conflict, unity is better than division, empowerment is better than resentment, and bridges are better than walls.
It’s a simple but powerful idea: we are stronger together.

Unfortunately, many social conservatives would also endorse these terms—and been ready to impose their interpretation of unity on us. Their unities are fostered and sustained by denigration and demonization of a foreign or domestic dissident. Is unity sustained by commitment to one core principle? Could that principle subtly reflect values that exclude some segments and interests and thus be a tool to secure particular identities? Might more unity be possible through recognizing and cultivating difference?

There are expansive movements across ethnic, religious, and national boundaries to build coalitions in support of programs to promote environmental health. In an earlier post, Connolly has provided a close reading of Pope Francis’ recent encyclical on social justice and the environment. The Pope has acknowledged the reasonable contestability of his core creed.  This is especially important if, as Connolly would argue, the traditional views of nature that have sustained and been sustained by socialist, capitalist, and feudal and Catholic regimes are deficient. Nature has been conceived as an organic totality, an orderly hierarchy with God and man at the top or as a mechanistic domain fully comprehensible and manipulable for human purposes. In one way or another nature exists for us. This “ontological narcissism” thus provides the conditions for confidence in at least the eventual unity of core beliefs. But if, as Connolly argues in The Fragility of Things, " the cosmos is composed of innumerable, interacting open systems with differential capacities of self-organization set on different scales of time, agency, viscosity, and speed,” such a world is unlikely ever to establish and sustain unanimity of core beliefs. To his great credit, Francis is willing to encourage breaths of some fresh air into this stalemated conversation.

Unlike some of his predecessors Francis does not denigrate atheists. He has invited participants from multiple religious backgrounds to debate the differing convictions as to the ultimate nature of the cosmos even as they converge on some common measures and become more responsive to “unknown unknowns” in our attempt to save the planet.  Different motives and ideals will lead different groups to participate in such coalitions, but the willingness to debate core convictions and to acknowledge gaps in one’s own world view strengthens and is strengthened by such pluralistic politics. Connolly recognizes that “many will refuse his or similar invitations,” but a positive spirituality—just as hateful and vindictive ones—can be contagious.  Even sporadic and partial local successes in a world so linked by social media can by their example change the character of politics. Rather than wonder whether we have time to act we must proceed now.