The future of our democracy is at stake.” So suggested Democratic House minority leader Nancy Pelosi on the retirement of justice Anthony Kennedy from the US supreme court. Donald Trump now has the opportunity to pick a new, more conservative judge, and create a supreme court that could shape the US social landscape for decades to come, rolling back recent gains on everything from abortion to voting rights.
The prospect of a Trump-shaped supreme court is certainly worrisome. Yet if it takes but the change of a single judge to so imperil fundamental rights, then the threat to democracy would seem to come not from Trump’s judicial pick, but from the very character of the supreme court and its role in US society.
Perhaps the most notorious attempt was that of Franklin D Roosevelt. In the early 1930s, the supreme court repeatedly threw out FDR’s New Deal policies. So, in 1937, having won a resounding election victory the previous year, Roosevelt introduced the judicial procedures reform bill. Popularly known as the “court-packing plan”, it would have granted the president power to appoint up to six new judges to the supreme court. The bill never became law: in the face of FDR’s threat to pack the court, the supreme court changed its mind about Roosevelt’s policies and declared them constitutional.
The peculiarities of the US political system give the supreme court an outsize role in the nation’s political life. For all its idiosyncrasies, however, the US debate holds broader lessons about democracy and the law. Judges are often presented, particularly on this side of the Atlantic, as disinterested custodians of the law, as neutral arbiters standing above the political fray. Maintaining the independence of courts from the political sphere is important in any democratic society but the relationship between the law, the judiciary and democracy is a complex one.
Laws form a necessary system of rules through which to regulate conduct in a society. But laws also codify power relations in society. Think of how the growth of trade union power in the 20th century forced governments to legalise union activities, while the demise of working-class movements over the past 30 years has led to the legal emasculation of unions. Or consider how much effort is spent on criminalising those at the bottom of society deemed “benefit cheats”, while the actions of asset-stripping big businesses are often ignored.
Nor are judges neutral interpreters of the law. In his book Injustices, Ian Millhiser details, in the words of the subtitle, “the supreme court’s history of comforting the comfortable and afflicting the afflicted”. From striking down federal laws against child labour to sanctioning states’ power to sterilise people under eugenic laws, the court has a murky, ideologically driven record. There is a similar story on this side of the Atlantic, too.
In recent years, liberals on both sides of the Atlantic have often looked to the courts to enforce rights that governments or parliaments may have been reluctant to defend. One of the worries that many liberals have about Brexit is that once Britain is beyond the jurisdiction of the European court of justice, equal rights and workers’ protections may be eroded.
Yet, as America shows, judicial activism can cut both ways. In any case, from votes for women to workplace organisation, rights and protections have largely been won not through judicial rulings but social campaigns and popular pressure.
Consider the question of abortion. Donald Trump has long promised to appoint “pro-life” judges to overturn Roe v Wade, the historic 1973 supreme court ruling that made abortion legal. Yet even with Roe v Wade still in place, women already find it much more difficult to obtain an abortion. Over the last few years, conservative states have introduced a raft of regulations making abortion harder to access and more expensive to provide.
Challenging such erosion of rights requires more than having the right supreme court judge. Whether we’re talking about abortion rights in America, or workers’ rights in post-Brexit Britain, what is necessary to win and protect progressive values is not judicial but social activism.
• Kenan Malik is an Observer columnist