Lead

The final frontier of populism?

How crucial constitutional questions are being fought in the highest courts in the world’s largest democracies

If a baker refuses to make a wedding cake for a same sex couple citing his religious beliefs, is that an exercise of religious liberty or a case of discrimination against homosexuals? The Colorado Civil Rights Commission in the U.S. ruled it was a case of discrimination. The baker moved the U.S. Supreme Court where he also argued that his refusal also involved a question of the freedom of expression. Creating a wedding cake was an artistic expression and he would not do that in support of a homosexual wedding.

The U.S. Supreme Court reversed the Colorado commission’s order, in June, on the narrow grounds that its procedures were tainted by an animus towards the baker’s faith. The court, however, did not rule on the questions of religious liberty, the freedom of expression and discrimination raised by the case — which are sure to come up in the future. The Indian Supreme Court is seized of the conflict between a religious belief and charges of discrimination in a case on Sabarimala, the Kerala temple where women of a particular age are not allowed entry.

When questions such as these come up in the context of executive or legislative action or inaction, it becomes the task of the judiciary to test them against the Constitution. There is a long-running debate in the U.S. on how the judiciary should interpret the Constitution. One school of thought, the originalists, believe that the constitutional text ought to be given the original meaning or intent that it would have at the time it was written. The evolutionists believe that the Constitution is a living document and the meaning of its text changes over time, as social attitudes change, and that the judges should interpret it accordingly.

Building a legacy

U.S. President Donald Trump’s two picks for the Supreme Court (in less than two years in office) come from the originalist school. Justice Neil M. Gorsuch and Brett M. Kavanaugh, Mr. Trump’s second nominee who awaits Senate confirmation as Supreme Court justice, came through the ranks of the Federalist Society, founded in 1982, by American conservatives and libertarians to promote originalism. Behind the smokescreen of his Twitter outbursts, Mr. Trump is building a legacy that could outlast his presidency by decades, through appointments to the higher judiciary. Unlike in the case of his foreign and trade policy, the entire spectrum of the American right wing, and the Republican Party, is solidly behind the President’s attempts to reshape the country’s judiciary. The Trump administration supported the baker’s argument in the Supreme Court.

 

As of July, Mr. Trump has successfully appointed 43 judges, which includes Mr. Gorsuch, 22 appeals court judges and 20 district judges. Barack Obama and George W. Bush had each appointed only nine appeals court judges at this point in their presidencies. Dozens of more Trump nominees are awaiting Senate confirmation. Mr. Trump inherited a huge number of judicial vacancies from the Obama presidency, as the Republican-majority Senate had slowed down appointments. It even refused to consider a Supreme Court nomination made by Mr. Obama, and the vacancy was filled only with Mr. Gorsuch’s appointment.

Mr. Trump’s nominees are not only almost entirely originalists but they are also far less diverse than the cohort of judges appointed by Mr. Obama. Only 10% of Mr. Trump’s appointees are racial or ethnic minorities; he has nominated one Hispanic and one black so far. Bringing in the highest share of non-whites in the judiciary in the history of the country, Mr. Obama had appointed 58 blacks, 31 Hispanics and 18 Asians over eight years. Out of the 324 judges he appointed, 116 were minorities. According to a Pew analysis in March, the proportion of female judges appointed by Mr. Trump was half as many as appointed by Mr. Obama. And 60% of all sitting federal judges in America are white men.

Tensions in a democracy

Judges are not impervious to public opinion but they are not meant to be its slaves either. They do not need to win popular votes This one layer of insulation from instant public opinion enables the judiciary to be the guardian of the fundamental values of the society, which too change but over a longer period of time. The tensions between the legislative or executive branches and the judiciary are unavoidable, and to some extent desirable, in a democracy. Varying degrees of judicial review provide a way to negotiate a balance between public opinion and values in democratic societies. In India, the judiciary can review even constitutional amendments.

When a society is in the midst of conflict over its elemental values, such tensions become more fraught. The legislative and executive branches are quicker in responding to people’s will and often, shaping it. When Franklin D. Roosevelt was legislating New Deal measures in the 1930s, the American judiciary threw a spanner in the works. The President sought authority from the U.S. Congress to appoint six new justices on the Supreme Court. The Supreme Court began to relent, and scaled back its resistance to the New Deal, and a populist takeover of the judiciary was averted.

India also has seen a similar phase, when the judiciary resisted progressive legislative measures such as land reforms in the early years of the republic. Those tensions continued all the way until an equilibrium was reached, with the Supreme Court establishing the concept of the basic structure of the Constitution in the 1970s. Roosevelt and India’s Congress governments were pushing for redistributive measures. At the core of the tensions between the judiciary and the more political branches was the search for a balance between justice and liberty, a perennial source of conflict in a democracy.

A turbulence within

It is one thing to expect the judiciary to be cognisant of evolving notions of rights and justice in a society, but quite another to demand the remaking of the judiciary in accordance with a majoritarian agenda. “The power granted to American courts to pronounce on the unconstitutionality of laws (is)… one of the most powerful barriers ever erected against the tyranny of the political assemblies,” Alexis de Tocqueville wrote on American democracy. The Trump movement and his judicial appointments seek to bend the judiciary to majoritarian pressures. Reshaping of the judiciary has been a core component of Mr. Trump’s populist agenda and his campaign speeches. Originalism implies the intent and meaning of a group of white, Christian men who wrote the country’s Constitution. Crucial questions on affirmative action, voting rights, immigration, abortion, religious liberty and homosexuals will be reviewed by the U.S judiciary in coming years.

The turbulence within the Indian judiciary and in its relations with the political executive and the legislature could also be seen in the context of the ongoing populist project to reshape the country. A judiciary dismissive of the popular will could disrupt the balance of power among the branches; but a judiciary subservient to majoritarianism will certainly undermine democracy.

varghese.g@thehindu.co.in

A letter from the Editor


Dear reader,

We have been keeping you up-to-date with information on the developments in India and the world that have a bearing on our health and wellbeing, our lives and livelihoods, during these difficult times. To enable wide dissemination of news that is in public interest, we have increased the number of articles that can be read free, and extended free trial periods. However, we have a request for those who can afford to subscribe: please do. As we fight disinformation and misinformation, and keep apace with the happenings, we need to commit greater resources to news gathering operations. We promise to deliver quality journalism that stays away from vested interest and political propaganda.

Support Quality Journalism
Recommended for you
This article is closed for comments.
Please Email the Editor

Printable version | May 29, 2020 11:51:12 AM | https://www.thehindu.com/opinion/lead/the-final-frontier-of-populism/article24804121.ece

Next Story