The US Supreme Court – Kritarchy and Compartmentalizing Manias
A recent leak from the Supreme Court of the United States (a very serious breach of trust, probably with political aims) is whipping up a severe political disturbance, right before the mid-term elections, which the Party in the White House traditionally loses when all does not become milk and honey after the Presidential elections. The leak hit a particular sore point for American politics, since it is on the issue of abortion, a problem that arouses massive emotional reactions in inverse proportion to the actual ability of politicians to address the issue. Apparently, the current Supreme Court, following a tactical case brought to its attention from Texas (Dobbs v. Jackson Women's Health Organization), is leaning towards repealing the 50 year-old constitutional ruling on Roe v. Wade (1973), which set hard limits on the restriction of abortion rights. Chief Justice Roberts confirmed that the draft by Samuel Alito was real, but mentioned that it is an old version and it is not indicative of the current version of the Court’s opinion. Following this possible repeal, individual states would be able to set a wider variety of abortion policies which are much more restrictive than the current norm and likely more in keeping with the view of the median American voter, who is more conservative than American elites. This has naturally resulted in much wailing and gnashing of the teeth and much posturing by politicians of all stripes. It is impossible to even discern right now the motivation behind the leak – whether it was a Republican sympathizer trying to drum up support from conservatives now that they are tantalizingly close to an important dream, or maybe it was a Democrat sympathizer trying to galvanize a disappointed electorate to show up to vote for an Administration which, in most practical ways, has been quite moderate and an overall failure on the big issues.
The justification for war
The source of Democrat anguish is the fact that the Current Supreme Court was named 6 to 9 by Republican Presidents and are thus presumed to lean Conservative, including the three named during the Administration of He-who-must-not-be-named, the ogre Trump. This result is due to the overall longer time in office enjoyed by the Republicans in the last two generations, since judges are named for life. Both Obama and Trump had the opportunity to name numerous judges, but feminist luminary Ruth Bader Ginsburg stuck on despite ill health and did not heed the advice of friends to retire and let a Democrat President nominate a replacement, either from personal ambition or a belief that Hillary Clinton, who eventually lost the election, would make a better decision on her replacement. Her death in the waning days of the Trump Administration aroused significant rancor, as it gave Trump the opportunity to delight fans by naming another conservative judge (Amy Coney Barrett), and gaining a presumed ideological majority in Court.
In practice, so-called conservative judges have been much more open to break with their presumed Party on judicial issues that had an ideological bent and to side with the liberals, either out of good jurisprudence or the social pressure of the Washington social milieu. Therefore, conservatives have entertained pro-immigration and pro-corporate decisions, as well as other landmark cases, including the adoption of gay marriage at federal level by Court fiat in 2013.
Whether tactically or out of true conviction, the Democrats are sounding the alarm on abortion. The weakness of Roe v. Wade is that it relied on an interpretation of the right to privacy to cordon off abortion from legislatures as an issue which can be the subject of democratic debate and decision-making. It derived, in turn, from a similar previous ruling on the right of a married to couple to have access to contraceptives on the basis of a right to privacy. The hamfisted reasoning, that eventually produced risible doctrines of “penumbras” and “emanations” from the Constitution that were eventually used to find everything from gay marriage to corporate free speech in a 300 year old document, stem from the fact that the Supreme Court only rules on cases lawfully brought before it and therefore has to contort its opinions to extract the maximum meaning from often very specific circumstances if it wants to generate wide ranging effects. This has been criticized not just by conservatives, incensed and mobilized by “judicial activism”, “judicial overreach”, “judicial legislating” and the kritarchy (or rule by judges), but also by liberals, who acknowledged that these practices create weak constitutional law that can later be overturned wholesale.
The new powers the Court had of employing any manner of sophistry to decide whatever it wished so long as a simple majority could be found or coerced also led to the phenomenon of Supreme Court nomination scandals, since gauging a candidate’s political positions, rather than judicial competence and learning, became vital for the Parties. It was seen in the rape accusations against the first (and until recently, only) African-American Supreme Justice, Clarence Thomas (a conservative), in the risible accusations against Brett Kavanaugh, a Trump nominee, which also triggered an invasion of Congress by activists that had parallels to the January 6th protests, but did not elicit any media reactions, except in approval, and in the grilling of Ketanji Brown Jackson, the first Biden Justice once she takes the bench, who was explicitly interrogated on her political and religious views on the absolutely valid assumption that they would influence her legal opinions.
Ruth Bader Ginsburg, long held as the spiritual doyen of the liberal court, and a pop culture icon in her own right, criticized Roe v. Wade repeatedly before she joined the Supreme Court: “Suppose the court had stopped there, rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force […] A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day, I believe and will summarize why, might have served to reduce rather than to fuel controversy." She highlighted the liberal results of other, more limited rulings, between 1971 and 1982, that advanced the cause of equality by striking down "a series of state and federal laws that differentiated explicitly on the basis of sex" not by creating a new philosophy, but rather by "the court, in effect, opening a dialogue with the political branches of government". The time predicted by these thoughtful liberals has arrived.
The repeal of Row v. Wade would be a watershed moment in American politics. Unlike most people who are rending their clothes on social media to proclaim the death of liberalism and the time of “The Handmaiden”, I believe that abortion will not be much affected. The median voter is more conservative than the elites, but much more liberal than just a short while ago, as can be seen on the issue of gay marriage, which was enacted federally at a time of majority opposition but which has majority approval today and would not be affected by repeal except in a handful of states. According to a Pew Study, just 10% of Americans favor the maximalist approach on abortion restrictions. If some states even go the whole way of banning abortions, it is still possible for women to have the procedure in another state, which has been pointed out as having a regressive effect, since it effectively excludes the poorest and less mobile. However, with the gradual leftward shift of the country through migration and a cultural shift in the younger generations, no maximalist conservative position on abortion can be seriously entertained as a possibility for the country, either at federal level or at the level of the vast majority of states. Then why all of the noise? It is simply because abortion has become a part of the culture war in the US, a war which consumes all of the political oxygen in the room, leaving precious little for taxes, pensions, foreign affairs or scientific research. The religious right, initially, but also abortion-conscious liberals, became fully mobilized behind the Republican Party on account of this one issue and, since then, they have become a large portion of single-issue voters, alongside the gun rights crowd. This means that, even though the dynamics of the Supreme Court ruling made it impossible to actually change anything, generations of conservative politicians (first from both parties, then just from the Republicans) could be (re)elected simply on the basis of their pro-life stance, with single issue voters sacrificing other important policy debates or even the question of honesty and competence.
It is interesting and even more puzzling to outsiders that both American progressives and conservatives argue from a simultaneously puritanical and liberal bias, with US conservatives being the conservatives of a liberal revolution. Nowhere in the public (and fruitless) debate of the last few decades has the issue of the eugenic or dysgenic effects of abortion, or of the political, cultural and fiscal impact of abortion, ever entered the mainstream discussion. It is especially interesting since restrictive abortion would rapidly turn red states bluer, since the demographics that use abortion most, sometimes as a form of contraception, are from poorer, less religious and minority backgrounds, found also in red or Republican states in an increasingly diverse America. If abortion restrictions, rather than denial, does cut down on abortions and raise birthrates, the Conservative Republicans are sacrificing political viability over principle which is, in itself, an improvement, since they had previously been sacrificing it for special interest groups like the cheap labor lobby.
The issue is even more mindless since the US itself, whose liberals often compare it unflatteringly with Europe, has much more liberal abortion regimes by state fiat than such totalitarian, conservative and religious hellholes as France and the Netherlands, where unthinkable policies, such as bans after the second trimester, mandatory counseling and waiting periods between requests and procedures and other abortion-restrictive measures can easily be found. Only Poland and Ireland maintain any sort of strong restriction, with Ireland recently liberalizing abortion to within conservative European norms. The difference between the US and the EU is that, in the former, a non-elected judiciary decided by simple majority to remove a hugely contentious and emotional issue from the area of democratic back-and-forth, whereas, in the latter, abortion policies were decided on a state-by-state basis through political compromise. If the European Commission were to hand over a Directive “from the Mount” forbidding restrictions on abortion earlier than 6 months or other forms of dissuasion, the EU would probably have a lot more populist rebellions on its hand than it does from its ill-advised forays into common refugee policies and quotas. It is likely that, had Roe V. Wade not come about, the US abortion landscape would not be much different than Western Europe’s today, without the attendant baggage of pro-life or pro-choice political posturing and, sometimes, terrorism.
Back to the lab
In my opinion, the US is such a diverse country, not only in what it has inherited and diminished, but also in what it has imported and accentuated, that it must turn the clock on its centralizing tendencies and let the 50 laboratories of democracy do their work. Abortion will still be a contentious issue, but the focal point of the vitriol will move to state level, freeing up national representatives to focus on more important and less flashy topics, such as the US’ dwindling stature in the world, the challenge to the US-led world order and any number of collective global issues, as well as many national ones. This and many other issues metastasized beyond the possibility of compromise and acceptance because they were taken from the sphere of normal politics arbitrarily and walled off from any prospect of modification in accordance with public positions. If we were to derive a general rule from this, we would say that the US constitutional framers were wise in creating a slimmed down Constitution and not shoving every one of their political preferences down the throats of future generations by walling them off behind cumbersome constitutional amendment processes. Most everything in the life of the nation was to be decided by legislatures in accordance with the natural evolution of public mores and perspectives, with the option of including it in the Constitution when something as near to a universal consensus had formed, such as on women’s suffrage.
However, everywhere in the world we see a new wave of moralistic reasoning (whether progressive or conservative, more likely the former) that creates exceptions from neutral political processes by invoking political formulas such as freedom and individual autonomy with the same mix of zealotry and cynicism that past leaders invoked patriotism or religion. In the US, by side-stepping the political process and using the Courts to “legislate from the bench”, they have condemned society to growing internal tensions without the possibility of release, undermining democratic institutions and “fictions” and obviating the need for persuasion, gradual and thoughtful change and compromise. This is viewed as a feature of the process, not a bug, but the progressives, having initially panicked at the thought of what Trump might achieve with an “imperial Presidency” they had spent generations building up in anticipation of gaining a permanent electoral majority, are now panicking at the thought of a conservative activist Supreme Court legislating God and the State back into people’s freedom, having become a powerful and unaccountable legislator in its own right. I think those fears are overblown, but they are a telling form of psychological projection regarding their own views on the proper (ab)use of state power.
The abortion issue in the US is a “tempest in a teapot” that should not have any bearing on the rest of the world. And yet, it has been a driver of US politics, making and unmaking political careers more than any environmental or security commitment, or any sort of efficacy in foreign affairs. The manner in which it has been handled has poisoned US politics and contributed to the secular decrease in public trust in democratic institutions. With the outsized influence that the US has over the world, which eagerly assimilated US culture war positions even when totally inappropriate locally, the various US internal conflict have had a detrimental effect on politics in other countries, often the ones closest to the US politically or culturally, such as those in Europe. The prospect of finally putting the genie back in the bottle by repealing Roe v. Wade and returning the issue (and others) to democratic control should be a godsend for anyone who wants the US to be able to focus on terrorism, the Ukraine crisis, global warming or whatever other thing one wants from the main superpower. Those who are against US presence and influence in the world could only rejoice as the country tore itself up over sexual minorities, race, policing, values and high symbolism and low impact issues. One might even focus influence operations on exacerbating these tensions to make US Administrations as ineffectual abroad as possible, having to always emote about culture war issues – isn’t that a nice conspiracy theory?
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