BackThe value of institutions that only kowtow to principles
Other countries have much to learn from America’s admirable institutional framework
PremiumImages of Trump supporters rioting on Capitol Hill on 6 January evoked shock and horror around the world. In the dreary Age of WhatsApp forwards, a thousand not-so-funny memes followed as well. Much less well covered was the slew of judgements from federal courts in different states that turned down the Trump administration’s attempts to overturn results in states it lost. According to Associated Press, the Trump administration brought about 50 lawsuits in total, winning hardly any.
In a 27 November decision, a Philadelphia court declined to decertify Pennsylvania’s election results, which Trump narrowly lost. The author of the opinion was Judge Stephanos Bibas, one of more than 200 federal judges appointed by the Trump administration. “Calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here," wrote Bibas. As the Pew Research Center observed in an analysis last week, “Trump appointed 54 federal appellate judges in four years, one short of the 55 Obama appointed in twice as much time. In the process, Trump ‘flipped’ the balance of several appeals courts from a majority of Democratic appointees to a majority of Republican appointees." For all the talk that the Biden administration would seek to pack the Supreme Court to overturn its conservative majority, the one area of uncharacteristic efficiency for the Trump administration has been filling the courts with Republican appointees. Trump also appointed three Supreme Court justices.
Yet, in case after case, the rag-tag Trump legal team lost again and again. The Supreme Court especially is still heavily weighted in favour of Republicans, and the Trump election petitions brought before courts everywhere from Wisconsin to Georgia were absurd, but the fact remains that the US judiciary, which has so many Trump appointees, showed its mettle by clear adjudication on points of law and logic, while not being swayed by partisanship.
The state of Texas sought to invalidate the results of the November election in Michigan, Pennsylvania Georgia and Wisconsin. Last month, the Supreme Court declined to hear the case. Michigan Attorney General Dana Nessel said, “Today’s Supreme Court decision is an important reminder that we are a nation of laws, and though some may bend to the desire of a single individual, the courts will not."
It is thus hard to argue that US institutions are crumbling when judge after judge appointed by Trump ruled sensibly on this election. Prominent Republican office holders in states such as Georgia did so impartially too, despite direct pressure from Trump. The same is true of US media, by and large, which has called out as lies the Trump accusations of a “stolen" election.
The Republican party, though, has almost entirely been captured by Trump, which has larger implications for the Biden administration in a two-party system that now seems incapable of compromise. Few people have been as partisan and obstructive during a Democrat presidency as Senate Majority leader Mitch McConnell was during the Obama years. He worked closely with the Trump White House in aiding and abetting its bizarre policy-making and joined hands to stuff the courts with Republican appointees. But, here too, there are hopeful signs of defections from Trump’s personality cult. On Tuesday, in a Senate speech, McConnell said of the Capitol attack, “The mob was fed lies. They were provoked by the president and other powerful people." Well, you could have knocked me over with a gavel.
This is clearly the start of an attempt by McConnell and some other Republicans to cut the Trump family down to size amid speculation that Ivanka Trump might run for governorship of Florida and Donald Trump Jr. could stand for president in 2024.
I interviewed Ivanka Trump for what felt like a very long hour on stage eight years ago in Hong Kong. Judging from that lacklustre performance, I would be sceptical about her managing a food-and-beverage outlet at a hotel, let alone governing a state.
McConnell’s effort may fail, as many of the 70 million plus who voted Trump may be galvanized by moves to impeach and convict him. But, it is a worthy battle for the soul of a party, and by extension of US democracy.
In India, depending on your point of view, we seem similarly blessed or afflicted with a personality cult at the top. The main opposition party appears unabashedly dynastic. The central bank has seen the abrupt departure of two governors over the past few years. After the Supreme Court’s staying of the implementation of farm laws, allegations alternately of judicial partisanship and overreach are becoming louder, echoing those made in an admittedly very different system against the American Supreme Court on issues such as religion and abortion rights in the US.
The decision of India’s apex court to examine the validity of ordinances in Uttar Pradesh and Madhya Pradesh that amount to state-led harassment of interfaith marriages is good news. Nevertheless, Dushyant Dave, until recently president of the Supreme Court Bar Association, sounded a note of concern in The Hindu last week. “Since 2014, the Executive has had an almost total approval by the court of all its Executive actions… One can only wonder: does the government ever falter?" As the US courts have shown over the past several weeks, the balance of power between the judiciary and the executive is a critical pillar of democracy.
Rahul Jacob is a Mint columnist and a former Financial Times foreign correspondent.
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