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Jacobin Magazine: Supreme Court may not be on our side

[In the liberal political imagination, the Supreme Court is an institution that must vindicate principles rather than practice politics. As the philosopher Richard Rorty once acknowledged, liberals “turn to the judiciary as the only political institution for which we can still feel something like awe. This awe … is respect for the ability of decent men and women to sit down around tables, argue things out, and arrive at a reasonable consensus.”

Disdaining political conflict, liberals would rather seek consensus through conversation. And they would prefer that such conversations take place only among a narrow stratum of elites and power brokers. The only “reasonable consensus” that the Supreme Court can produce is inherently anti-democratic. Liberal enthusiasm for pursuing policy change through the Court rather than through confrontation and struggle illustrates the degree to which progressive politics has become emptied of content and purpose.

In 1789 — the same year that French revolutionaries were storming the Bastille — the wealthy and landed elites of the newly formed United States were consolidating their power. The French Revolution sought to abolish the aristocracy. In the United States, however, a new aristocracy of landowners, merchants, and slavers — the framers of the Constitution, which went into effect that March — sought to prevent anything like the French Revolution from taking place on American soil. They were aghast at popular uprisings, demands for mass debt forgiveness, and state governments that appeared dangerously willing to consider subordinating the interests of creditors and mercantile elites to those of farmers and workers.

wethepeopleThrough the Constitution, the framers were determined to put in place a system of institutions that would resist democratic pressures and mute expressions of popular sovereignty. Although the framers frequently invoked the idea of popular sovereignty, they did so not in order to constitute a collective subject, but to prevent one from emerging. The Constitutional Convention of 1787 could hardly be classed as a constituent assembly of the kind found in France. It was convened in a state of exception rather than one of revolutionary ferment. Its delegates busied themselves not with giving institutional expression to popular sovereignty, but with creating a national government whose responsiveness to democratic politics was limited. To those who carried the day at the Convention, popular sovereignty consisted of little more than presenting the Constitution to state governments for ratification — a deeply participatory and popular form of democracy was hardly what they had in mind.

usuncutThe Constitution claims popular sovereignty as its authorization, but establishes a distinctly undemocratic system of institutions. Unlike the political institutions of republican France, the institutions established by the Constitution are elite-dominated, decentralized, and marked by few opportunities for direct participation by the people. These are the institutions defended by the Supreme Court when it reviews the constitutionality of legislation. In this way, the Court participates in American politics mainly by attempting to frustrate the exercise of democratic power.]

resistBy fixating on the Supreme Court, liberals have inherited the framers’ skepticism of popular sovereignty and mass politics.

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