(John McCann/M&G)
Since World War II the United States has successfully positioned itself, warts and all, as the global prefect of the liberal democratic order. In this role it has alternatively admonished, punished or pushed its allies to punish governments that have a poor human rights or democratic culture.
But observing some of the decisions of the US supreme court has led me to ask once again questions about the long-term sustainability of the country’s own democratic order. In recent years it has felt so vulnerable to self-immolation that it sometimes teeters on the brink of crisis, although US scholars are quick to remind that it is merely history repeating itself. They say things will be just fine.
This may have been somewhat convincing in the past, but I am not so convinced now.
The US has three “co-equal” branches in the legislative, executive and judiciary branches. In the normal course of this constitutional architecture, the judiciary plays the role of arbiter of disputes. When those disputes have a constitutional implication and have not been resolved by lower courts, they make their way to the supreme court.
For generations this formula worked just fine. As the US Constitution is very old, litigants and judges have successfully devised novel ways in which to interpret its provisions such that they can be applied in the modern era. For example, when the supreme court decided to declare abortion legal in the famous Roe vs Wade decision in 1972, it based its decision on a woman’s right to privacy.
There is no federal statute specifically allowing it, unlike South Africa where the constitutional provision is given practical meaning and guidance in the Choice on Termination of Pregnancy Act of 1996. Just over a year ago the US supreme court reversed the 1972 decision in the now famous “Dobbs” decision, stating that the matter of abortion is for the 50 states to decide individually.
This decision sent shock waves around the world because many politically conservative states either wanted to ban abortions outright or place severe limitations on them. In some instances, these state laws are applied in a manner that endangers the lives of pregnant women, especially when the foetus is not viable in late term.
The doctrine of “letting states decide” is not new, and was the same basis for the violent contestation of whether slavery should be abolished when the civil war took place from 1861 to 1865.
It was also in play when in 2013 the same supreme court decided to gut the Voting Rights Act, effectively declaring that racist gerrymandering — or proactive vote rigging, as I call it — can resume unhindered. The decision removed most of the authority of the federal government to oversee voting district boundaries and to disallow them if they were redrawn in a manner that disenfranchised black voters. Voting districts are not drawn by the federal government but by states, and so as soon as the supreme court delivered its decision, the vote rigging began.
For example, states can decide to place far fewer voting stations per capita in black communities than they do in white, conservative communities. Some even make it illegal to bus people to voting stations, or to give them water and food while waiting to vote. A community with fewer voting stations will inevitably have longer queues, so to make it illegal to provide refreshments is designed to make voting as inconvenient or painful as possible. This has resulted in state legislatures having Republican party majorities that do not reflect the political opinions or social attitudes of their residents.
But there is a more insidious problem. After the 1972 abortion decision, the conservative movement began a concerted, long-term effort to ensure that over time, the nine-member supreme court would have a conservative majority. That means whenever a Republican president had an opportunity to nominate a judge, the sieve for successful nomination would be whether that candidate supported or opposed abortion.
That was not the only criteria. Candidates were also placed before the Senate when it was clear that they were generally in favour of reducing the power of the federal government. Justice Brett Kavanaugh, for example, does not believe the federal government should have the power it has to make environmental regulations, a position that is popular with large companies that find environmental regulations costly.
An organisation called the Federalist Society, formed in 1982, has been most successful in having its former members appointed to the supreme court. By the time the court ruled to overturn the Roe vs Wade decision, it was a foregone conclusion that they would.
The recent judgment (called “opinions” in the US) that rescinded affirmative action in university admissions was another foregone conclusion. Like abortion, numerous polls show that the majority of Americans are in favour of deliberate diversity and inclusion programmes such as affirmative action.
For space reasons, I am not able to list all the supreme court decisions that were, because of the nature of its composition, almost a foregone conclusion. As a result of this ideological predictability, polls show that fewer and fewer Americans have trust in its integrity. The situation is exacerbated by close money-related links between some of its judges and wealthy litigants, or wealthy people who support conservative causes.
There are also some egregious cases, such as last week’s decision to rule that a graphic designer may refuse to provide their services to LGBTIQ+ people because graphic designs are protected by “free speech”. This was particularly galling because the case was hypothetical; there was never an instance in which two parties were in dispute over the issue. The supreme court has historically rejected hypothetical cases, but this seems to no longer be the case.
The slew of hypothetical cases before the court is part of an organised trend by the conservative movement to create organisations solely for the purpose of constitutional litigation so the conservative court may rule in their favour. Currently on its way to the supreme court is another hypothetical case in which a so-called doctors’ organisation is claiming that administering the abortion pill may traumatise some doctors.
The supreme court is expected to give this case a hearing even though no doctor has claimed to have been traumatised by administering the drug. The organisation appears to have been formed for the purpose of pursuing this case in a Texas federal court district where the sitting judge is a staunch opponent of abortion.
The pill is used throughout the US, and if the court were to ban it, it would further limit women’s right to abortion.
So why do I think this potentially amounts to self-immolation of the democracy itself? There are two reasons.
The first is that there is now a situation where, if the conservative movement is not able to win a political majority and enact the laws its wants, it turns to the conservative court to declare existing legislation unconstitutional. In turn, the court has appeared eager to hear these cases, and then rule in favour of the litigants.
If this trend goes on, and the credibility of the court continues to plummet, hostility towards it is likely to increase. Hostility towards the judiciary is never good for democratic sustainability, yet the court’s own trajectory is hurtling towards deep polarisation over its recent track record.
Second, predictable court decisions for ideological reasons is an enduring feature of undemocratic states where sitting judges have to do the bidding of dictators. These never end well either.
Although in the recent mid-term elections voters in various states rejected new abortion restrictions, it is also true that the US is so divided that it is unlikely that there will be a constitutional amendment anytime soon that enables reform of the court.
That leaves only one option on the horizon: open defiance of its decisions. When that happens, it marks the end of democracy itself.
Songezo Zibi is the leader of a new political party, Rise Mzansi.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian