Disorder from the courts

MOSCOW — In the notorious case of Dred Scott v. Sandford in 1857, US Supreme Court Chief Justice Roger Taney ruled that African-Americans were not and could not be citizens of the United States, and that the 1820 Missouri Compromise, which had created an (admittedly uneasy) equilibrium between slave and free states, was unconstitutional. Many consider the ruling the spark that ignited the American Civil War. The US Supreme Court seems not to have learned from its mistakes.

The court’s power to upend politics was not always obvious. In 1832, when US Chief Justice John Marshall ruled that legislation enacted by Georgia to allow the seizure of Cherokee lands violated federal treaties, President Andrew Jackson reportedly spat, “John Marshall has made his decision; now let him enforce it.” In fact, Jackson may not have said it, but he and the state of Georgia did proceed to ignore the ruling.

And yet, globally, judges have probably done as much as any band of revolutionaries to disrupt political systems, in the process often undermining, rather than advancing, the cause of justice. The 1894 conviction of Captain Alfred Dreyfus on concocted espionage charges divided France for a generation, fatally weakening the country in the run-up to World War I (in which Dreyfus, having finally been exonerated, ultimately fought).

In 1922, a sedition trial cemented Mahatma Gandhi’s position as the leader of India’s independence movement, while exposing British justice as a sham. In the 1970s, the arrest (and subsequent killing) of Steve Biko, the founder of South Africa’s Black Consciousness Movement, raised global awareness of the apartheid regime’s criminality, ultimately leading to international sanctions on the regime.

In Russia, Alexei Navalny’s recent conviction, also on absurd charges, following a Kafkaesque trial, may prove similarly harmful to President Vladimir Putin’s regime. For years, Navalny was the leader of what can best be described as a fringe protest movement. Even after he was poisoned last year with the military nerve agent Novichok, an attack with the Kremlin’s fingerprints all over it, only a minority of Russians actively supported him.

Russians may have considered Navalny brave for standing up to Putin, including by returning to Russia after recovering in Germany from the Novichok attack, and he is now Russia’s leading opposition figure. But it was only after a court hastily sentenced him to almost three years in a penal colony that tens of thousands of protesters took to the streets to support him (or at least to defy Putin).

For Putin, this probably came as a shock. He was simply trying to use the courts to silence a pesky opponent, an approach with a rich pedigree in Russia. Stalin’s show trials of Nikolai Bukharin, Marshal Mikhail Tukhachevsky, Grigory Zinoviev and Lev Kamenev, all conducted by the sneering General Prosecutor Andrey Vyshinsky, with Stalin himself sometimes peering down from a curtained balcony, killed off (literally) all opposition to his rule.

But Putin, a former Soviet KGB officer, would also know what happened after Joseph Brodsky was convicted in Putin’s native Saint Petersburg (then Leningrad) of “social parasitism” and sentenced to five years of hard labour for the defiant act of writing poetry. The episode inspired the generation of dissidents who helped to catalyse the Soviet Union’s downfall.

Clearly, regimes often suffer when courts are exposed as tools of authoritarian overreach. But that is not the only way the judiciary can subvert a political system. Courts can also rule in ways that undermine democracy.

That is what has been happening in the United States for the better part of two decades. By refusing (despite having some good reasons) to endelectoral gerrymandering, Chief Justice John G. Roberts, Jr., has directly enabled the paralysing hyper-partisanship that reached its nadir during Donald Trump’s presidency. By striking down all limits on corporate spending on political campaigns in the infamous 2010 Citizens United decision, he has helped to entrench dark money in US politics. And by gutting the 1965 Voting Rights Act in Shelby County v. Holder, Roberts has facilitated the racist voter-suppression tactics now being pursued in many Republican-controlled states.

Of course, Roberts has not been alone in issuing reckless rulings. The 2008 District of Columbia v. Heller ruling, written by the late Justice Antonin Scalia, established for the first time in US history an individual right to own guns. There was nothing convincing about Scalia’s argument. Indeed, it utterly disregarded the first half of the Second Amendment, which stipulates that it is within the context of a “well-regulated militia” that “the right of the people to keep and bear arms” applies.

As the great conservative jurist Richard Posner put it, the ruling was a snow job, built on faux originalism. Its consequences have been lethal. Just this month, the US has endured two mass shootings in less than week.

None of this is to say that judicial review of legislation or government policy is intrinsically anti-democratic. Consider the British Supreme Court’s 2019 ruling striking down Prime Minister Boris Johnson’s attempt to bypass Parliament in the Brexit process. This was a defence of democracy so potent that Johnson and his Conservative Party have since been scheming to strip the UK Supreme Court of its power to rule in a number of areas.

The point is that the democratic ideal of judicial independence does not rule out accountability. It is said that Roberts is deeply interested in history and concerned about his place in it. Unless he and his colleagues start considering the real-world consequences of their rulings, he will almost certainly be remembered in the company of Taney, not Marshall.

Nina L. Khrushcheva, professor of International Affairs at The New School, is the co-author (with Jeffrey Tayler), most recently, of “In Putin’s Footsteps: Searching for the Soul of an Empire Across Russia’s Eleven Time Zones”. Copyright: Project Syndicate, 2021. 

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