A Timely Reminder for the Left: Beware the Courts

Natter about the US Supreme Court’s decision to overturn Roe v. Wade has reached even these distant shores, with much online ink being spilled about what our National Party Opposition intends to do (or not do) on the subject of abortion, and whether a mooted party of far-right social conservatives could hypothetically muster 5% of the party vote. Enough to get it into Parliament, where it would no doubt influence a future National Government towards certain policy stances.

But that is not the subject I wish to address. No, today I am looking beyond New Zealand. Today, I am wading into a veritable firestorm of international commentary on That Court Decision, and asking one simple question of my Leftist colleagues:

Why the hell are you so surprised?

Common Law Courts are not, and save for the odd aberration have never been, any sort of friend to progressive politics. Of course not – judges are drawn from a privileged class, and have views consistent with their background. The modern Left’s expectations of how the court system behaves (together with the associated matter of rights) are utterly at odds with the history of these institutions – specifically their history of defending Establishment interests against the unwashed masses. The unwashed masses who were, more likely than not, to only encounter the inside of a court room because they were on the receiving end of criminal charges. For stealing a loaf of bread, perhaps. Or for trying to organise a trade union.

Leftists from the era when the Left stood first and foremost for economic transformation understood this well enough. For them, judges were the class enemies, wielding unelected (but nevertheless very real) social power. Rather than the modern liberal conception of court decisions protecting a persecuted minority, courts were where the elites went to block (or at least undermine) social causes championed by the Left and democratically-elected officials. And that was only to be expected. Elites have an uncanny instinct for class solidarity that would turn your average Marxist pink with envy.

A purview of the history of the US Supreme Court – the most monstrously powerful set of judges in the Anglophone world – should illustrate this well-enough. Never mind the infamous Dred Scott, this is an institution that in its time has struck down child labour laws, minimum wage legislation, and legitimised the Jim Crow South. This is the institution that turned a civil rights amendment into a weapon to shoot down governmental efforts to regulate work hours (“the right to contract is sacrosanct!”). Go back to the 1930s and ask any political progressive what they thought of the US Supreme Court, and you would not get a positive response. Nor was this a phenomenon limited to the United States. In 1948, Australia’s court system struck down their Federal Government’s effort to nationalise the banks. Britain’s post-war Attlee Government was arguably only able to establish the National Health Service because Britain’s unwritten constitution and traditional emphasis on parliamentary sovereignty shielded it from judicial meddling.

“But that’s all changed!” answers the modern Left. “Modern courts are different! All those bad decisions were overturned.”

And therein lies the problem. The US Supreme Court from the 1940s to the 1970s indeed had a progressive slant. And it did overturn much of the horrendous old material. But the overlooked point is that that was only ever a freak aberration, a product of twenty uninterrupted years of Presidents Roosevelt and Truman, followed up by the moderate Republican Eisenhower. And the judges appointed by those gentlemen are long gone. Today’s Court is gleefully slotting into its traditional role as the bastion of reaction… and yet for some reason the modern Left seems to think that the current gaggle is an aberration, rather than the rule. By contrast, a 1930s progressive would recognise the ugly motivations behind Citizens United well-enough.

(In the case of New Zealand, I would also point out that our New Zealand Bill of Rights Act 1990 was a creation of the Fourth Labour Government. The Government that brought the Free-Market Revolution to these shores. It’s almost as though there’s an implicit ideological connection going on, one that everyone seems to overlook…).

I think there are two underlying factors here. The former is that heady folk memories of the 1940s to the 1970s have generated a romantic idea of what progressive lawyers can achieve. Which is fair enough, except that folk memories are a poor substitute for dealing with cold, hard, and highly conservative reality. History, much less Law, is not bent towards progress, however much we tell ourselves otherwise.

The other factor is that the modern Left – at the international level, and honestly New Zealand is no exception – too often thinks of the unwashed masses as something to be feared. Under this view, the People are a bunch of ignorant numpties, choc-full of prejudice, who don’t know what’s best for them. Nor can their elected politicians be trusted – though after forty years of neoliberalism, it’s not as if politicians are relevant to the way a country is realistically governed.

That sort of view inherently lends itself to moving social debates from the messy arena of politics and into the more refined and educated arena of the court room, where legal Philosopher Kings operate at far remove from the scruffy rabble. Small wonder that the modern Left is far more fixated on social liberalism than economics. Those legal Philosopher Kings and their hangers-on might countenance social liberalism. Overturning neoliberal economics is a harder pill to swallow.

But courtesy of the US Supreme Court, we’ve all had a wake-up call. It turns out those wealthy and well-educated Philosopher Kings can be socially conservative too. Which means maybe – just maybe – the Left ought to rediscover some of its old ‘democratic’ scepticism of the courts and their activities. Rather than its current use as a pejorative, the long-scorned art of ‘populism’ ought to again be the Left’s bread and butter. But I am not holding my breath there.

4 thoughts on “A Timely Reminder for the Left: Beware the Courts

  1. populism might be a good tactic. i get much better responses framing it with like the Working Men soviet union propaganda. plus most of the anti-leftism is really anti ‘blue hair and gay people’ and drugs and other culture war stuff seen as ‘big city elitism’

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  2. Gotta throw a yellow card for the excluded middle fallacy, here. The third force in the US is business. Liberals, as the Europeans call them. The Left has always known the Supreme Court couldn’t be trusted. They sometimes would join the side of the angels from Brown to Obergefell because those decisions were good for business. But starting a few years ago, the coalition among business, patriarchy, and white-supremacy has broken down. The Right now is just the last two. The Left needs to go into coalition with the liberals, but honestly most of us are jerks so who knows what will happen?

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  3. In my experience, leftists in the United States are an out-of-touch minority more concerned with snootily setting themselves apart from liberals than any genuine political action. This is why, despite growing up in a communist country, I cannot abide the American right-wing’s Red Scare fearmongering, especially since the average right-winger wouldn’t know an actual communist if the latter nationalized their toothbrush. American communists are a joke. Worry rather about the cocky fascists running loose and the far right nuts outlawing abortion and precipitating climate change, instead of disingenuously pretending Obamacare is a plot of the Fifth International.

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  4. can you be a leftist and oppose abortion? that’s how I feel, I like leftist economic transformation but I also don’t think it is okay to oppress the unborn.

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