The Supreme Court, Democracy, and Protecting Minority Rights

This week the Times Daily podcast, hosted by Katrin Bennhold, told the story of Europe leading up to the EU elections. Bennhold travels through France, Italy, Poland, and finally Germany telling the story of European Democracy while trying to understand shifting tensions.

Bennhold begins with an assumption that liberal democracy is an axiom while analyzing the rise in nationalist politics evidenced by the genesis of parties like AfD, Law and Justice, and the Five Star Movement.

This is also a familiar in America and England. Perhaps it is best to describe the state of affairs as a crisis in Western Politics, the state of Democracy, and what that idea means.

Bennhold’s podcast highlights competing visions of Europe’s future while the EU elections acts a sort of referendum on the idea of liberal democracy. The usual proponents of this political philosophy are people like French President Emmanuel Macron and Chancellor Angela Merkel in Germany.

Bennhold’s analysis is most interesting as she goes to countries where populism has made the greatest gains in terms of power and asks about the root causes. Getting to the why behind the shift in politics. In her fourth podcast she goes to Poland and interviews Danuta Bialooka-Kostenecka, a member of the Law and Justice Party.

The Law and Justice Party is the ruling party in Poland; considered right wing and ultra-conservative. These ultra right wing parties, like AfD in Germany, and the Five Star movement in Italy, are often framed as totalitarian, racist, xenophobic, anti-immigrant and anti-LGBT.

When Bennhold presses Danuta on these issues, Danuta responds that “her party doesn’t tolerate discrimination. But what she said she didn’t like and what her party didn’t want is what she called active promotion of ‘those’ values.” Those values being generally what liberalism is today taken to mean. What Danuta is highlighting is a system that “imposes specific behaviors on people” instead of giving “people what they want,” which she says Poland is doing.

What Danuta is arguing is that representative democracy is most clearly demonstrated in countries like Poland and Hungary. Danuta is arguing that this form of nationalism is best characterized as emphasizing traditionally culture, shared values like religion while resenting the dilution of this culture through immigration, and adoption of LGBT rights. This she argues is the mandate of the people and the popularity of her party is a manifestation of popular will and a people rising up against challenges to their traditional cultural.

When Bennhold presses Danuta on the state of democracy in countries like Germany, Danuta hesitates, and says no, she sees a denigration of democracy in Germany. Rather, Danuta is arguing, the imposition of liberal values is being forced unwillingly on the people of Germany. This sentiment is echoed by the AfD party Bennhold visits on the night the results of the EU election come out.

An interesting problem Bennhold illustrates is the idea of the tyranny of the majority. What happens when popularly elected parties campaign against some “other” and are elected. And what happens to minority groups targeted by this type of politics? Where might they find redress? This tyranny of the majority is a frightening notion for people who live on the fringes of society and there are startling examples of misguided popular will. The fear that discriminatory ideas can capture the public and lead to terrible outcomes is, given Europe’s history, a legitimate fear. This raises an important question over how minority rights manifest in laws that protect those values.

In America today there is no doubt where we stand on the issue of segregation. This was an reprehensible blight on America and a policy of moral depravity. When the Supreme Court decided Brown v. Board of Education there was massive resistance to the idea of desegregation. In fact, politicians routinely campaigned on keeping schools segregated and won. Civil Rights leaders turned to the courts in order to facilitate change. Advocating to a group of nine elected people to chart a new course for America.

What made resistance to desegregation possible in the United States?

Well, America is the best, obviously, and we have an idea in legal jurisprudence known as Federalism where if something is not directly reserved to the federal government by the constitution, then states have the freedom to decide these issues. The case of who went to school with who was something states did and was how the South was able to resist desegregation.

Then the Warren Court came to the rescue, as the myth goes, and ruled in Brown v. Board of Education that schools must desegregate. Black and white students would attend the same schools.

The Court’s ruling was initially met with what has become known as “massive white resistance.” In fact one state governor said, and I’m paraphrasing, Warren has made his ruling, let’s see him enforce it. What followed was the infamous case of the Little Rock Nine.

In Arkansas, a group of nine African American students were enrolled in Little Rock Central High School to desegregate the school in 1957. The governor of Arkansas, Orval Faubus, deployed the Arkansas National Guard to prevent the Nine from entering the school. It took President Eisenhower federalizing the Arkansas National Guard to force integration of the school and legitimizedthe ruling of the Supreme Court.

What this example highlights is the importance of institutions and the separate avenues of redress in the United States. Where public morality fails, like in the case of the Little Rock Nine, it is vital that there are institutions with the power to act for “good.” Who determines what these nebulous values are though raises questions about our own comfort with giving nine robed figures the power to dictate morality. Do we feel comfortable with the power they enjoy? What about knowing that President Trump is the one nominating those justices.

The issue Bennhold begins with is the challenge to liberal democracy and what that idea means. What her podcast clearly demonstrates is that values differ. But who gets a voice should not be what this debate is about.

I don’t agree with the values of AfD, the Five Star Movement, or Law and Justice, but some people clearly do, and they deserve representation as well. After all the dirty laundry only gets clean when aired out.

It’s reprehensible that the AfD party in Berlin had to secretly change the location of their viewing party for fear of violence directed at them. This same behavior is occurring on American college campuses where opposing viewpoints are shouted down and intimidated into silence.

These are strategies more generally associated with the evil “other.” And it was on these same college campuses that the Free Speech movement was born. Today, these institutions stand corrupted by a perverse form of post-modernism that no longer champions freedom and liberation, but the imposition of a particularly view point.

This is the point that the AfD and Law and Justice are making. People are going to have different opinions and it’s important to listen to them, hear grievances, and change minds not by coercion, but rather by like wit or something.

I can’t believe I’m forced to defend the free speech values of these parties. I feel gross doing so sitting in the murky sweat of long summer days. I need a shower.

Every election is a referendum on the state of democracy and the values that our governments’ represent. I guess it’s nice knowing that I live in a country where the Green Party is doing pretty well. But memory is short and public sentiment shifts quickly. #Obamawemissyou