(with apologies to Banksy)
10 October 2018 (Rome, Italy) — During the course of the annual International Bar Association (IBA) meeting in Rome this week there was plenty of chatter amongst my colleagues about “that Kavanaugh thing” – Brett Kavanaugh’s appointment to the U.S. Supreme Court. I posted my views over the weekend in a piece entitled “The Kavanaugh Court, ‘delegitimizing’, and the suffocation of democracy” which you can access by clicking here.
My main points were that the U.S. Supreme Court has spent the better part of 20 years chipping away at American democracy, the Supreme Court Justices becoming mere junior varsity political players. I won’t repeat my points. Please read the article if you are so inclined.
I distributed my piece to colleagues here and one noted “look, as the U.S. supreme court has turned inward, the rest of the world is in turn paying less attention to it”. I am certainly not the first to say this but the Court’s waning influence is due partly to the rise of sophisticated constitutional courts elsewhere. And that the U.S. is simply out of step. Ruadhán Mac Cormaic of the Irish Times noted:
On questions of equality, liberty, torture or discrimination, courts in developed democracies are more likely to cite the European Court of Human Rights and to find that the increasingly conservative and unimaginative US court has little of value to say. Overtly political decisions, such as the one that gave George W Bush the presidency in 2000, and the retreat into originalist fundamentalism, have added to its growing global irrelevance.
For me, he notes the most important factor: the Court decisions are increasingly conservative and unimaginative, with little of value to say. There is more power and sophistication in the dissents to the main decisions.
What in hell happened? It was just in 2015 at the IBA Annual Conference in Vienna that we were talking (glowingly) about “The Court and the World” , the new book by U.S. Supreme Court Justice Stephen Breyer. He examined the work of the Supreme Court in an increasingly interconnected world, a world in which all sorts of activity, both public and private — from the conduct of national security policy to the conduct of international trade — obliges the Court to understand and consider circumstances beyond America’s borders. For those of us working on/following the Microsoft v. United States (aka the “Microsoft Ireland” litigation) it was an urgent read. He noted that we lived in a world of instant communications, lightning-fast commerce, and shared problems (like public health threats and environmental degradation), one in which the lives of Americans are routinely linked ever more pervasively to those of people in foreign lands: “judicial awareness can no longer stop at the water’s edge”.
Now? Chief Justice John Roberts, as well as justices Clarence Thomas and Samuel Alito, have all denounced reference to overseas law as a threat to the U.S. tradition of democratic self-governance.
Trying to understand Republicans
Many colleagues asked “so what is up with those Republicans?!” Far too vast a subject for this post so herein my “TED TALK” version:
- The history of the modern Republican Party is the story of moderates being driven out and conservatives taking over — and then of those conservatives in turn being ousted by those even further to the right.
- A telling moment came in 1996, when the Republican presidential nominee, Bob Dole, visited an aged Barry Goldwater. Once upon a time, Dole and Goldwater had defined the Republican right, but by 1996, Dole joked, “Barry and I — we’ve sort of become the liberals. I told Barry ‘We’re the new liberals of the Republican Party’ and he agreed. Can you imagine that?” [quote provided by Dev Keplin, reporter for Politico]
- The ascendance of extreme views, abetted in recent years by Fox News, Newt Gingrich, Sarah Palin and the tea party movement, increasingly made the House Republican caucus ungovernable. So the far-right Freedom Caucus drove House Speaker John Boehner into retirement in 2015.
- His successor, Paul Ryan, lasted only three years. Ryan’s retirement signals the final repudiation of an optimistic, inclusive brand of “Reaganesque conservatism” focused on enhancing economic opportunity at home and promoting democracy and free trade abroad. The Republican Party will now be defined by Trump’s dark, divisive vision, with his depiction of Democrats as America-hating, criminal-coddling traitors, his vilification of the press as the “enemy of the people”.
So … the extremism that many Republicans of goodwill had been trying to push to the fringe of their party is now its governing ideology.
And the Supreme Court? How did it become so political?
The story of where this really went bad starts with Robert Bork, Nixon’s Solicitor General. He was “the last man standing” after the Saturday Night Massacre in 1973. Nixon loved him and nominated him to the Court.
Side note: Bork’s greatest influence was in antitrust law. He argued that the original intent of antitrust laws as well as economic efficiency makes consumer welfare and the protection of competition, rather than competitors, the only goals of antitrust law. Congress bought into it and U.S. antitrust law was subsequently changed.
Bork’s confirmation hearings were both the last episode of the Watergate scandal and the first episode of a new and enduring scandal, the blurring of the legislative and judicial branches of the federal government. Bork’s nomination elicited paid television advertisements (the first time for a U.S. Supreme Court nominee) as if he were running for an elected office.
Since then, the distance between the judiciary and the political process has almost entirely eroded. With Merrick Garland, Senate Republicans, acting with breathtaking heedlessness, abandoned the constitutional principle that a Supreme Court nomination is meant to be insulated from public opinion, Mitch McConnell arguing that “the American People” … not the Constitution which says the sitting American President … would name the next Supreme Court Justice. I firmly agree with Christopher Browning, in his essay The Suffocation of Democracy, when he says:
If the U.S. has someone whom historians will look back on as the gravedigger of American democracy, it is Mitch McConnell. He stoked the hyperpolarization of American politics to make the Obama presidency as dysfunctional and paralyzed as he possibly could.
Partisanship has corrupted the confirmation process. The legitimacy of the Court has declined. The confirmation vote counts over the last few years:
Scalia 98-0
Kennedy 97-0
Souter 90-9
Thomas 52-48
Ginsburg 96-3
Breyer 87-9
Roberts 78-22
Alito 58-42
Sotomayor 68-31
Kagan 63-37
Gorsuch 54-45
Kavanaugh 50-48
CLOSING COMMENTS
The court’s damaged reputation is hard to disentangle from the diminished standing of the U.S. in general. As many have noted, Trump’s misrule has brought that reputation to unexplored depths. The world was rapt by the horror-show of Kavanaugh’s confirmation.
The conservatives are ascendant. And they are reactionary. Many commentators have said the isolationists will have prevailed over the internationalists. I suspect most Americans would laugh at the notion that their Supreme Court was being affected by isolationist or internationalist inclinations. The divisions in the U.S. are internal: rich versus poor, corporations versus people, Christianity versus … well, all the rest. As one of my colleagues here in Rome said: “The driving forces in America are now closer to the paleolithic than to the Enlightenment”.
And let’s face it. What has happened is not so much that the court has become politicized but that U.S. society has become mega-politicized. We have been pummeled with the media fallacy that everything Republicans did to help Kavanaugh’s nomination “worked” and everything the Democrats did “failed.” Yeah. I’m sure it had nothing to do with a GOP president sending a conservative nominee to a GOP Senate.
We have entered a turbulent period in our politics. I will end with a quote from one of my favorite reads over the summer, Political Tribes by Yale Law professor Amy Chua, where she states the situation quite crisply:
We find ourselves in an unprecedented moment of pervasive tribal anxiety. For two hundred years, whites in America represented an undisputed politically, economically, and culturally dominant majority. When a political tribe is so overwhelmingly dominant, it can persecute with impunity, but it can also be more generous. It can afford to be more universalist, more enlightened, more inclusive, like the WASP elites of the 1960s who opened up the Ivy League colleges to more Jews, blacks, and other minorities — in part because it seemed like the right thing to do.
Today, no group in America feels comfortably dominant. These feeling are being fanned by all manner of social media and technology. And they are feelings, not intellect. Every group feels attacked, pitted against other groups not just for jobs and spoils but for the right to define the nation’s identity. In these conditions, democracy devolves into zero-sum group competition — pure political tribalism.