Europeans are doing well not to look down upon the democratic backsliding in the US too much. The mix is different, but all the elements are here as well. Here too, the interplay between governments and courts is all skewed, writes Sophie in ‘t Veld.
Sophie in ‘t Veld is a Dutch member of the European Parliament (D66/Renew Europe).
How does a judge get to be an icon, featuring in documentaries and movies, her initials on t-shirts and coffee mugs all over the United States?
Sure, Ruth Bader Ginsburg or RBG was worthy of iconic status: a mix of character and wisdom, of power and a certain quirkiness is always beguiling. But one of those elements is the key: the tremendous personal power Supreme Court justices have.
What does it say about a political system if one 84-year old woman’s passing is a threat to civil rights, women’s rights, voting rights and welfare rights for people all across the country, and the subject of a political fight many find almost as important as the election itself?
Indeed, there is a case to be made that the party formerly known as ‘republican’ finds it even more important, and that its cringeworthy pliability to Donald Trump’s personal agenda originates in what he allows them to do in the margins of politics: nominate people who implement their arch-conservative agenda to courts all across the country at all levels… up to the Supreme Court.
So this isn’t about RBG and the balance of power within the Supreme Court, but about the outsized role it now plays in the functioning of the US politics.
Here’s a system that has given up on democratic deliberation. Because why go through the painstaking, transparent and inclusive process of making laws the democratic way, if you can have them interpreted and subverted whichever way you want by appointing the ‘right’ kind of people to courts?
Here’s a country that has lost all sense of togetherness and public values, and has moved the fight over interests and ideas to backrooms and courtrooms. Here’s a nation that no longer believes in ‘We, the people’.
We, Europeans, do well not to look down upon the democratic backsliding in the US too much. The mix is different, but all the elements are here as well.
Here too, the interplay between governments and courts is all skewed. The Hirsi Jamaa case of 2012 is but one example, where the European Court of Human Rights ruled that Italy broke the law in sending asylum seekers back across the Mediterranean, where they risked ill-treatment by Libyan forces.
We’ve seen it many times since, governments blatantly refusing to act while the European Commission – let alone Council – refuses to point out their responsibility.
Here too, from Hungary’s discriminatory law on NGO financing and Poland’s dismantling of its legal system to rulings on rights of same-sex partners, the EU courts have been clear where EU politics was absent and afraid.
And here too, people from all parts of the political spectre increasingly resort to court cases, not as a check on politics but as an alternative. The Dutch Urgenda initiative led the way for climate litigation cases across the democratic West in order to push politicians to act responsibly on climate change. In short: to do the job they were elected to do.
You see the same trend in migration: last month NGOs Oxfam and We Move Europe took the Commission to court over its failure to counter Greek infringements of EU asylum rules and rights. The Commission, which used to pride itself on being the guardian of the treaties, now needs to be forced into action through court.
The (extreme) right often calls it ‘gouvernement des juges’, the legal system going beyond its remit, but what we see is almost the opposite: politics retreating from its most elementary mission, and courts being forced to act, not as a last resort but as the only lever still seen as capable of delivering change.
When making tough legal calls, RBG regularly pointed back to Congress: it was their job to make real change happen, not to follow the lead given by the Supreme Court. Interpreting the law and making it are two different things, and two different processes. Judges and lawyers have neither the role nor the legitimacy to pull the chestnuts out of the fire, when politics is unable and unwilling to do so.
The warning is a fortiori relevant for European politics. The malfunctioning of our political institutions is unbalancing the EU model. The overloading of other institutions is leaving real power unchecked.
We count on courts to uphold privacy, migrant or minority rights, while our own politicians undermine them. We count on the ECB, markets and even legal trickery like a ‘Schuldenbremse’ to get our economies back on track, while governments go slack on structural reforms.
We count on NGOs, companies and citizens to tackle climate change, even to the point of taking their politicians to court over it, rather than get our hands dirty and do what politics is for: debate, deliberate, and decide on the public interest together.
And in the middle of all this is a political vacuum, unable to get a grip on the real challenges the continent is facing, unwilling to assuage the real fears our citizens have. To save democracy in Europe, we need to get European democracy to work again.