The Judiciary’s Corruption, and Democracy’s

When I first started traveling to India in the late 1980s, I found a developing country beset by almost inconceivable difficulties. Yet amid those challenges, Indians had managed to forge a functioning democracy. Elections were fair and surprisingly well-run. But mostly, the democracy held together because India’s judiciary wasn’t corrupt. Justice moved very slowly and in a country of a billion, was always splitting at the seams. Yet those who had their day in court found more or less what they’d get in the UK or the US or Canada. It demonstrated to me that judicial health is the essence of democracy. If people believe all are equal before the law, they can place their trust in the system. 

The US Supreme Court is busily dismantling that belief decades later here at home. It’s not that the six-member majority issues conservative rulings, it’s that these rulings often don’t have any basis in fact or the law. The Justices use originalism when it suits them. They observe precedent when it suits them. They regard some portions of the constitution—the 2nd amendment—as sacrosanct, but pretend others (the 4th and 14th) don’t exist. They use the facts that support their rulings and ignore those that don’t. The decisions often read like a Tucker Carlson monologue rather than a judicial finding. 

This isn’t just bad because these rulings have malignant effects. The Court’s rulings are bad because they undermine our confidence in law—and particularly in justice. Democracy rests on this very strange agreement to let our political foes govern, to enact policies we may despise. The glue that holds the agreement together is law. The political system may whiplash between parties, but the laws of the country are the stabilizing force. Especially important is the belief that justice does not die when you lose an election. 

The Supreme Court is exercising its raw power in handing down these rulings. It comes at a huge cost; they are, at the same time, destroying the sense that justice prevails. I don’t want to be Pollyannaish about this—the judiciary was never completely separate from politics. Giving the judiciary final say on constitutional matters was always something of a kludge. But it worked so long as the judiciary stuck to legal norms and based their decisions on fact. When you have a court so disinterested in maintaining even the appearance of preserving these norms, the cost is dear. 

(And all that would be true even if the justices were personal paragons of ethics. Needless to say, they are not.)

As bad as Trump is, as disturbing as the direction of the Republican Party, these problems are categorically normal for a democracy. You always have autocratic or incompetent politicians. A corrupt judiciary—that’s an order of magnitude more difficult.