The Legitimacy of the Supreme Court?
The system is working and that is the problem
Even before his confirmation as a Supreme Court justice, Brett Kavanaugh’s petulant display of entitlement — in studied contrast with the simultaneously measured, difficult, and incisive testimony of Dr. Christine Blasey Ford — should have permanently removed the veneer of legitimacy from our Supreme Court and the constitutional order more broadly. Beneath the surface performance of decorum, lies the cold mechanical preservation of elite power. While many see in Kavanaugh another step on a slide away from some imagined moment of political grace, the truth is that our system is working precisely as designed. Our constitutional order protects the power of an enriched, empowered, and elite minority against the “passions” and “opinions” of “the masses.” In effect what this means is the ever-greater amplification of private power — whether that manifest as patriarchal authority, racial privilege, or economic domination — over a people demanding change. Book after book claims that the United States is suffering from an excess of democracy, where “the people” have somehow become unmoored and are leading “our” republic astray. This is precisely the wrong diagnosis. Brett Kavanaugh is just the latest product of a nearly 300-year experiment in democratic deficit.
We Americans are “constitutional fetishists” in the apt phrase of the lesser-known mid-20th century critical theorist of law and economy, Franz Neumann. We tend to think that a particular order of state institutions — for example, our current incarnation of the separation-of-powers — embodies the essence of democracy instead of looking to see what kind of politics, democratic or otherwise, such institutions facilitate. Although Neumann was speaking in the broad strokes of theory, the United States is, perhaps, the case-in-point.
Far from living at the bay of “the mob,” the United States is institutionally the least democratic among nominally democratic countries in the OECD world. When the political scientists Alfred Stepan and Juan Linz — who had devoted their careers to studying democratization around the world – turned their analysis to the United States, what they discovered was a not a pretty picture. While most democratic states have at best one or two so-called “veto players” — checks on the expression of popular sovereignty through elected representation — the United States has four. The United States has an additional four further amplifications of the power of an elected minority. Taken together, these establish the United States as the least representative democracy among developed democracies in the world. Stepan and Linz were hardly radical scholars but the implications of what they observed in the 1990s is indeed quite radical today.
It’s not that somehow this system has gone off the rails in recent years. Rather, as democratic pressures for the recognition of women and racial minorities as full human beings – to redress our gross economic inequality, to fundamentally transform our state and society into ones of freedom and flourishing for all — have increased, our constitutional order has acted precisely as it was intended. The “founders” feared a democratic society — that eventually an ever increasingly enfranchised majority would encroach on the privileges and the property of society’s “betters.” When Donald Trump — the second far-right United States president in as many decades to be installed by the undemocratic electoral college — appointed Brett Kavanaugh to the Supreme Court not only do we see our Republic functioning normally, we get a glimpse at how empty and illegitimate our cultural notion of “betters” truly is.
It is long past due that we address this democratic deficit. One of the best places to begin that transformation is with the Supreme Court. In recent years, the Supreme Court has acted, time and again, as yet another veto player in our already distorted system, another amplifier of private power against the public good. Even the most modest attempts at social reform — take Obamacare — face a final hurdle at the hands of our unelected, legal clerisy. Even basic political reforms like attempts to secure the voting rights of African Americans or even simply decrease the sway of ever more concentrated wealth over our electoral system itself, have been eviscerated by the Supreme Court. The Court’s role though has not simply been as another check on democratic power. Even more fundamentally it has played a decisive role in turning a host of political conflicts — over race, gender, economics, and power — into exercises in jurisprudential exegesis.
Legal scholars of the left like Jedidiah Purdy have made a compelling case already for developing — as the Right has for decades — a tradition of decidedly left jurisprudence; a body of work emphasizing democratic participation, economic citizenship, criminal justice restraint, and the rights of non-citizens and citizens alike. But, perhaps ironically, it is liberal thinkers like political philosopher Jeremy Waldron who have made the more radical case: judicial review as we know it must come to an end. The court is undemocratic, increasingly illegitimate, not obviously a better guarantor of rights than legislatures but above all is depoliticizing. We need to take these arguments and bring them out of transcendental philosophy and back into real, material history.
As the historian Nancy MacLean has been arguing, the Right has a fundamental constitutional vision: to permanently enshrine our current order — in effect all of our existing hierarchies — in a constitution of “locks and bolts,” which not only protects the rights of the few but removes meaningful power permanently from the many. The agenda of the right — which in the United States can hardly be said to be limited to the Republican Party — is given a distinct leg up by the original anti-democratic design of the United States constitution. As popular opinion has grown against the prevailing social order, the private power supporting anti-democratic and unrepresentative institutions of our constitutional order — from the Senate, to the electoral college, to the Supreme Court — have all ‘kicked in’ to do the work of providing elite refuge from popular sovereignty. If the Right’s constitutional vision is to institutionally embed what it can no longer democratically defend on even the most unleveled playing field, what is the left’s goal?
Neumann’s life’s work was incomplete; he died in a car accident in 1954. But as a disparate set of figures from Angela Davis to Raymond Geuss have argued, his project seems more vital than ever in the 21st century. As a writer from the left, he broadly understood that our existing legal and constitutional institutions do little more than express existing concentrated private power iniquities. At the same time as a Jew who narrowly escaped Nazi persecution and as a political thinker looking with ill-ease at the erosion of basic individual protections in both capitalist West and Soviet East, he believed that there is something to be salvaged from the tradition of the liberal individual as well. He was particularly idiosyncratic for a member of that era’s Social Democratic Party: he looked on with disdain as his ideological comrades believed — as so many liberals do today — that an inexorable march of “progress” would simply whisk their ideals into place. And while he looked critically at the Stalinism of those to his erstwhile left in the German Communist Party, he envied them the clarity of their understanding of political struggle as the basis for social transformation. In his post-war life, Neumann began to synthesize these positions into what might be called a “revolutionary constitutionalism.” This would be to tear away the many barriers to democratic sovereignty that currently exist in a system like the United States while at the same time retaining an independent judiciary tasked with basic human rights and due process oversight at the level of the individual.
Unlike other institutions such as the Senate or the electoral college, the Supreme Court’s size, scope, and duties have largely formed out of tradition — out of norm — rather than out of explicit constitutional fiat. The Supreme Court granted itself the right to judicial review; the nine-justice number is one of those many accidents of history which became enshrined as somehow sacrosanct in the post-war era. A president and a simple Senate majority could — through recognizable procedures such as court-packing — achieve such changes incredibly quickly. Now is not the time for pleasing myths about the wisdom of our institutions and their independence from private power. Now is not the time to uphold norms. Just as the Right has used the Federalist Society and other bodies to produce reliable far-right judges and jurisprudence, there must be an absolute commitment to appointing justices committed to just such a democratization agenda and the jurisprudential program outlined by Purdy and others.
Some might argue that this puts the United States at risk of a political arms race, not understanding that the right has been running just such a race — and winning — for decades now. It is without question that such a strategy contains risk but even as many have held views like this for years, we have unquestionably crossed a Rubicon this past week. It must now be plain to all that radical institutional transformation of the Court is the immediate task at hand. Furthermore, one must ask: is there greater risk in democratization than in the continued diminution of American democracy? Than in the “stewardship” of the far-right majority of Roberts, Thomas, Alito, Gorsuch, and Kavanaugh? This too was something Neumann learned through his years of observing conservatives and liberals, reactionaries and leftists — there is sometimes an overwhelming desire for a “riskless” politics. To avoid the difficult work of organizing mass democratic constituencies, “they do not know or do not want to know that the struggle for political power… is the agent of historical progress.” The fetters on American democratization must be removed. Ironically, this is only a first step; a better institutional order is a necessary but far from sufficient condition. But the alternative, a commitment to empty “constitutionality,” to some kind of pure legal form — “can endanger democracy itself.”
Kavanaugh is no aberration from the American political tradition; he is its basic logic laid bare. For those committed to any agenda more progressive than that of Donald Trump, Mitch McConnell, and Brett Kavanaugh, not only must this Court be sidelined but the Supreme Court radically rethought, challenged, and transformed. Anything less is not credible.
Ajay Singh Chaudhary is the executive director of the Brooklyn Institute for Social Research and a core faculty member specializing in social and political theory. He holds a Ph.D. from Columbia University and an M.Sc. from the London School of Economics. His research focuses on social and political theory, Frankfurt School critical theory, political economy, political ecology, media, religion, and post-colonial studies. Ajay is currently working on a book of political theory for the Anthropocene.