A Fearful Asymmetry: Why the Ideological Capture of Courts Disproportionately Benefits the Right (and How the Left Makes this a Self-Fulfilling Prophecy)


In this essay we argue that any use of guardians, or technocratic bodies that are not democratically accountable (Dahl 1989, ch. 4), is inherently pathological for leftist parties and movements. The details differ from context to context but there is an inherent contradiction involved when political forces pursuing egalitarian progress embrace elitist institutions of any sort, including courts. The radical authoritarianism of the current US Supreme court is the logical conclusion of this contradiction. By relying on guardianship rather than the tried-and-true tactics of organization and mobilization used by the left to pursue economic equality, the left empowered the court to the point where it could revoke rights and stymie (or even reverse) progress on economic and political equality. By providing a shortcut that allowed the left to eschew popular politics, the left weakened its own electoral base and simultaneously boosting that of the conservative movement through the backlash generated by undemocratic expansion of rights. This allowed the right a degree of electoral success that, while not enough to govern, was enough to capture the court and turn it against the rights expansions recent decades.
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