Beware the American way, it’s all political
United States Supreme Court Justice Anthony Kennedy has announced his retirement. President Donald Trump will nominate his successor at some point in the next few weeks. This may prove a turning point in the history of that institution. For many years, liberal activism was a hallmark of the court. But, over time, Republican presidents have nominated more stalwart conservatives. As a result, the court became balanced between liberal and conservatives. Important decisions have rested in the hands of mercurial ‘‘swing justices’’. But not for much longer. Most assume Trump will appoint a reliable conservative. If he does, he will lock in a decisive Right-leaning Supreme Court majority for the first time in decades. The implications for this could be far-reaching. The Supreme Court of the US is more than a neutral arbitrator of disputes about the law. Under America’s written constitution, it has also become the country’s top legislature. While not elected, it has become the final arbiter of moral and social issues in the US. There has always been some New Zealanders who would like to replicate that model here. They have become more voluble in recent years. Former prime minister Sir Geoffrey Palmer is one. He has proposed a constitution that would give practical effect to judicial supremacy in this country. The coalition Government has some tendencies along the same lines. Under proposed reforms approved by Cabinet, the courts will, on finding that a statute is inconsistent with the New Zealand Bill of Rights Act 1990, order Parliament to respond to its finding. It’s a small step, to be sure. As the prime minister says, however, the direction of travel is clear. Traditionally, those to the left of Centre have been supportive of judicial sovereignty in principle. There is an expectation that political courts will short-circuit the electoral system as a path to progressive reform. It is true that the US Supreme Court has been ahead of the pack on many issues. Civil rights are the most famous example. But as the court has shifted rightward over time, so have its decisions. In recent years, the court has ruled in favour of firearms rights, free speech and the protection of religious liberty and toleration. These are all causes for which modern liberals often have hostility. Last week saw a slew of court rulings on matters considered unfavourable to progressives. I am informed that this has occasioned some reflection on Twitter, the social media platform where a lot of New Zealand’s journalists, academics and activists hang out during the working day. If so, this would be a welcome recognition of the fact that those who live by judicial supremacy will die by judicial supremacy. You can only use the courts as a means of achieving political goals if you also accept the inevitability of your political opponents eventually doing the same thing. This brings us to another worrying trend in American culture: the politicisation of everything. Sports, food, religion, personal attire, family, dating – all these formerly compartmentalised things are subject to hyperpartisan scrutiny. To use a phrase of these times, there are no ‘‘safe spaces’’ in American life now. Last month, there was a string of stories about people who work for the Trump administration being harassed while trying to dine in public or being denied service on the basis of their employment. This has been met with a lot of fistpumping in social and mainstream media in the US. One congresswoman urged this on, saying: ‘‘If you see anybody from that Cabinet in a restaurant, in a department store, at a gasoline station, you get out and you create a crowd and you push back on them, and you tell them they’re not welcome any more, anywhere.’’ I do not think highly of the character of the American president. And some of the things the US government does are simply appalling. At the very least, those things are a symptom of a larger sickness emanating from the American body politic. But what happens when political fortunes have changed? No victory in politics is permanent. There will be a Democrat in the White House again. It could well be sooner rather than later. And when employees of that administration are badgered and pestered in public, what can be said to dissuade them? Appeals to the importance of civility and charity will have little persuasive force coming from people who gave no quarter when the roles were reversed. Scolding editorials and tweets from New Zealand will do nothing to avert the downward spiral. What you wish upon your opponents, you wish upon yourself. They may even take your precedent further. It is hard to see how this can end well. I have always admired America. I am also in favour of an open society. But if it were in my power and authority to wall our country off entirely from the influence of American politics and culture then, right now, in all honesty, I would probably do it.
To use a phrase of these times, there are no ‘‘safe spaces’’ in American life now.