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.

The Racial Innocence of John Roberts

Jack Turner

Jack Turner is associate professor of political science at the University of Washington. He is the author of Awakening to Race: Individualism and Social Consciousness in America (University of Chicago Press, 2012).

Chief Justice Roberts is on a mission to dismantle public policies that correct the aftereffects of de jure white supremacy. Civil rights lawyer William Taylor warned us of Roberts’ softness on white power on the eve of his confirmation: “The most intriguing question about John Roberts is what led him as a young person whose success in life was virtually assured by family wealth and academic achievement to enlist in a political campaign designed to deny opportunities for success to those who lacked his advantages.” Taylor chronicled Roberts’ early career in the Reagan administration where he worked energetically to strip federal courts of the power to desegregate schools through busing; Roberts also worked energetically to block the 1982 re-authorization of the Voting Rights Act and to deny public education to children of undocumented immigrants. During the confirmation battle, Roberts maintained that he was simply following the orders of superiors. But through an analysis of legal memoranda from the period, Taylor demonstrates that Roberts took positions more hostile to the rights of African Americans and Latinos than those of his superiors.

Taylor’s worries about the implications of a Roberts Court for racial justice have been vindicated. In Parents Involved v. Seattle (2007), Roberts led the Court’s majority in striking down the use of a “racial tiebreaker” in the allocation of spots in oversubscribed public schools. In Ricci v. DeStefano (2009), he joined the majority in upholding the validity of a civil service exam that had a demonstrable racial bias in favor of whites. In Shelby County v. Holder (2013), he led the Court in striking down Section 4 of the Voting Rights Act (VRA), rendering the Justice Department powerless to prevent states and localities with a history of racial discrimination from infringing citizens’ right to vote. What interests me is not just the pattern of Roberts’ race jurisprudence. It points clearly in the direction of a colorblind constitutionalism that protects white advantage. What most interests me is Roberts’ self-assured style of opposing race consciousness. That style bespeaks both a racial innocence born of privilege and an investment in an American “meritocracy” that just so happens to tilt in favor of whites. By analyzing this self-assured style, we get a window into the mindset of those who work to preserve racial stratification while congratulating themselves on rigorous adherence to the principles of liberal democracy.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts propounded in Parents Involved. Though the formulation is forceful, the logic is old. Since the 1960s, conservatives have framed race-conscious remedies for racial injustice as morally equivalent to racial slavery and segregation. The logic turns on the idea that racial discrimination—in the weak sense of distinguishing racial groups—is morally repugnant in its own right and the first step down the slippery slope of racial oppression. The logic is appealing because it exploits a partial truth: reflexive racial categorization of people is a crude and often degrading form of social interpretation, and all systems of racial oppression require drawing distinctions among racial groups. Proponents of colorblindness thus portray themselves as heroic defenders of racial justice who tough-mindedly attack racism at its root. The logic’s weakness lies in its obfuscation of the fact that we live in historical time, and that centuries-old systems of oppression leave aftereffects even after those systems have been formally abolished. Refusing to take notice of race becomes a principled basis for refusing to track how the legacies of slavery and Jim Crow differentially affect the lives of citizens, conferring advantage on some and disadvantage on others.

This blindness to historically cumulative racial power could be an innocent intellectual mistake and therefore susceptible to correction. Or it could be the whole point: colorblindness leaves the material inequalities produced by slavery and Jim Crow intact, and makes them the presumably just baseline of our political life. The fact that African Americans make 60 percent the income of white Americans and possess just 10 percent of the wealth becomes an unfortunate phenomenon whose origins are mysterious—whose causes may even be “cultural”—instead of a predictable byproduct of longstanding failures to provide equal education to black citizens, to prevent discrimination in the workplace, and to ensure equal opportunities to own homes and accumulate wealth. (If Roberts is not convinced that these conditions are traceable to Jim Crow, he should do his homework—starting with Melvin Oliver and Thomas Shapiro’s Black Wealth / White Wealth: A New Perspective on Racial Inequality [rev. ed. 2006]).

Source: Edward N. Wolff, "Recent Trends in Household Wealth in the United States: Rising Debt and the Middle-Class Squeeze—an Update to 2007," Levy Economics Institute of Bard College Working Paper No. 589, March 2010, Tables 10 and 11. - See more at: http://inequality.org/wealth-inequality/#sthash.M9CxHxJm.dpuf

This strategy goes hand in hand with a triumphalist narrative of racial progress that holds that America was born in racial sin but redeemed itself through the Civil War and Civil Rights Movement, culminating in the Civil Rights Act of 1964 and the Voting Rights Act of 1965, which purged the sins decisively (excepting, of course, some final racist holdouts who can be dismissed as atypical). Roberts’ opinion in Shelby County v. Holder expresses this triumphalist narrative: “Our country has changed,” rendering the VRA’s current coverage formula an unjust imposition on states’ “equal sovereignty.” Roberts ignores empirical evidence vindicating the coverage formula. More striking is his failure to acknowledge the force of the VRA’s “bailout provision,” which enables any covered jurisdiction to relieve itself of Justice Department supervision by maintaining a clean record on voting rights for ten straight years, and which therefore addresses his concern about unwarranted federal impositions.

Roberts is exasperated by the fact that the preponderant number of covered states are states of the Old Confederacy; his pique seems directed at the very idea that the racial geography of slavery and Jim Crow is still morally significant. Acknowledging that significance means entertaining the thought that slavery and Jim Crow have afterlives that implicate whites in systems of racial advantage—systems that undermine white claims to merit and self-reliance. Could it be that Roberts’ anxiety over the idea that the racial past is “not even past” is deeply personal—an anxiety rooted in his own investment in his personal narrative of meritocratic success? If he is magnanimous enough to acknowledge that he benefitted from his whiteness somewhere along the way from private boarding school to Harvard College to Harvard Law to Hogan & Hartson to the Supreme Court, must he still cling to the idea that the system is basically just—that even when people like him benefit from whiteness, the magnitude of their merit eclipses all the little ways social systems dole out injustice? If the system is basically just, is not the primary task for the man of clarity and principle to preserve that system, and purge it of so-called correctives that indict both it and its beneficiaries? Must not the man of clarity and principle also insist that the situation of blacks and whites in America is morally symmetrical, notwithstanding any remaining inequalities?

Roberts’ acceptance of the idea that the situation of blacks and whites is morally symmetrical underwrites his hostility to race-conscious public policy. Relinquishing that idea would mean confronting his own placement at the pinnacle of American racial hierarchy. The notion that the playing field—even if occasionally rough and muddy—is basically level, and that the winners on that field have real reason to congratulate themselves, may be the primary source of Roberts’ hostility toward race-conscious public policy. For in attributing injustice to the system, such policy questions the merit of the winners. Losing his identity as a winner is too much for Roberts to tolerate.