Can America Adjudicate A Neutral Principle?

The real question before the U.S Supreme Court is not whether presidents have immunity, but whether the country is capable of comprehending a neutral principle

United States Supreme Court Building. Wikimedia Commons

No-one identifies with a political party in Australia. This isn’t to say that people don’t vote regularly for one party, or that they aren’t partisan about this party. Partisan politics exists in Australia, like anywhere. But no-one calls themselves a Laborite, a Liberal, a National or a Green. And this is a very important distinction. To do so would be crass or cringe. It would place a sense of self within these parties. Something Australians simply don’t feel.

Furthermore, as Australia was the inventor of the secret ballot, publicly identifying with a party would seem to defeat the purpose of this form of voting. One registers to vote as a citizen, not as anything else.

Australian political parties have memberships far lower than most clubs in the Australian Football League. This may say something about Australians’ priorities, but it also presents an interesting contrast within Australian politics – everyone votes, but hardly anyone is a member of a political party. This may be bad for political parties, but I suspect it’s good for democracy. Australians are highly engaged in politics and well-informed, but our football clubs are where we put our money and our emotions.

I’ve been thinking about this as I read and watched news last week about the current United States Supreme Court case determining whether Donald Trump has immunity from prosecution for trying to subvert the 2020 Presidential Election. Due to the incessant partisanism of American politics the case seems to be comically unable to be adjudicated on its merits.

I use the term “partisanism” here, rather than “partisanship”, as I believe this is a far deeper psychological and cultural issue, rather than just the mechanics of party politics.

American politics and society is distinct from other Western countries in that party political affiliation permeates everything. People refer to themselves as either a Democrat or a Republican, regardless of whether they are active in these political parties. There are also independents, but one registers as an Independent, which doesn’t feel very independent at all. And its an identification made in relation to these two political parties – which are the referent objects of the system.

Election officials are party affiliated, unlike Australia were even a whiff of any association with a political party disqualifies you from being in the role. Large sections of the bureaucracy are political appointees, rather than apolitical professionals. Prosecutors have party affiliations, which makes each case feel political, even if it shouldn’t be. And although judges are not given party identities, they have political identities that, in the American political lexicon, correspond with these parties anyway – conservative and liberal.

When writing about politics – or any issue – everything has to be framed through partisan or political identity. No-one can be quoted without mentioning they are a Republican or Democrat lawyer, analyst, or anesthesiologist. No organisation can provide input without a designation of their “leaning”. As a result no-one is able to assess an issue or an idea on its merit. There’s always an angle of self-interest attached, so everything comes with an emotional pull that clouds rational inquiry.¹

This partisan framing and language is so entrenched and normalised in the U.S media that I don’t think journalists understand the culture they have been creating. Or they feel that their audience it so emotionally insecure that is requires constant partisan signals to be sent to provide reassurance.

The problem this creates is the inability to comprehend a neutral principle. In a recent interview with Semafor, Joe Kahn, the Executive Editor of the New York Times, seemed to admit that neutral principles are, to him, unable to be distinguished from partisan politics. When questioned whether the New York Times should be more concerned about the current threat to democracy from Trump and the Republican Party, he pondered:

We become an instrument of the Biden campaign? We turn ourselves into Xinhua News Agency or Pravda and put out a stream of stuff that’s very, very favourable to them and only write negative stories about the other side?

This is a mindset that is so immersed in the logic of partisanism that to him a defence of democracy is a partisan issue because one of America’s two parties is seeking to undermine it. Being “unfair” to the Republican Party is what he is concerned with, not being unfair to the Republic.

Yet it is not unfair to cover a party’s behaviour accurately. You don’t have to provide “balance” to people trying to overthrow a system of government that is, despite what hysterical people may think, not tyrannical. A system of government, by the way, that allows the New York Times to operate freely. That prevents it from being Xinhua or Pravda.

While the New York Times is struggling with this concept, so is the Supreme Court when considering the question: “Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

What should be a very simple inquiry into whether the rule of law exists in America instead has the Supreme Court tying itself in knots of what constitutes an “official act”. Granted, political leadership certainly comes with difficult decision-making, and it is impossible to be a country’s leader and not have some decisions lead to adverse consequences.

However, whether there’s intention to do harm is critical. As is whether acts are committed for personal gain, and whether the whole concept of the rule of law is under attack. It is here that Trump’s actions should be deemed intolerable. Instead the Supreme Court looks to be heading towards a more subjective and partisan understanding of what constitutes an “official act”, and as a result, demonstrating an inability to protect the rule of law.

This case may ostensibly be about the idea of presidential immunity, or – extraordinarily – whether a president has the right to encourage an insurrection if it is considered an “official act”. However, the actual question before the Supreme Court is whether the U.S is able to administer, or even comprehend, a neutral principle? And, at present, all signs point to no.

An argument has been developing over the past few years that believes that because Trump’s supporters are so impassioned and in thrall to Trump’s “charismatic authority” placating these people is required to protect social stability. This perspective looks to be endorsed by Justice Samuel A. Alito Jr, who commented that granting immunity may be “required for the functioning of a stable democratic society, which is something that we all want.”

This is completely backwards thinking. Stability comes from a public that understands and accepts neutral rules. Not from placating a group that refuses to accept these rules. What Alito is endorsing is mob rule. Having a Supreme Court justice endorse this doesn’t give it legitimacy. It instead signals that the court has been captured by the mob.

This is the danger of partisanism. And why Supreme Court justices having political identities is pure insanity. This is just not the way other countries function. Certainly no-one knows the political views of High Court judges in Australia, or frankly, even their names. Trust in their decisions flows from their anonymity.

Nothing could be more detrimental to the well-functioning nature of a society than justices that are seen and see themselves as partisan actors. Of course, these are highly educated people who are capable of being objective jurors, but these critical faculties are weakened when objectivity isn’t an expectation. When the core assumption is that partisanism is innate and unavoidable. When there is a public desperation around the court like in the U.S.

No matter how educated one is, no-one is immune to groupism – particularly when groupism is relentlessly encouraged. The more the media talks about a judiciary in partisan terms – and describes individual judges through this lens – the more these judges will think of themselves as political partisans. This is unavoidable.

On a cultural level these problems begin with the politics of identity – not just who people identify with, but what people call themselves, and why they feel the need to call themselves something. The primary problem with identity is that it makes everything feel existential. You don’t place yourself within a broader nation or within humanity itself, you place yourself in a smaller group that feels an intense competition with other groups. The idea of inherent threats is inbuilt to identity.

We retreat into identity when we feel insecure, yet this insecurity is only exacerbated as it feels challenged by other people who have also retreated into identity. A political system with only two (viable) parties, where the entire mechanics of the state is built on the competition between these two parties, and where cooperation is not structurally embedded (like with European countries that use proportional representation), compounds the permanent anxiety of party politics as a zero-sum contest.

It is this that has produced an extraordinary phenomenon of people who worked for Trump, who will now openly admit that he is grossly unfit to hold the office of the president, yet still also publicly delcare that they will vote for him. To them, ideas, principles, behaviour, character, criminality, and hostility towards the country itself are all irrelevant. As long as it says “Republican” next to the person’s name, that’s who they’ll vote for. This kind of deeply embedded partisanism and identity politics is absolute brain cancer. It’s the sign that even a remote adherence to civic values is beyond comprehension. It is the in-group that matters, and only the in-group.

This forms the central pillar of negative partisanship – the politics of who you hate. When suspicion is dominant, a pervasive cynicism develops and social trust diminishes. Any attempts at objectivity or neutral principles is deemed merely a ruse to disguise some kind of power play. None of Trump’s supporters believe that a justice system that charges him is acting out of anything other than political gamesmanship. Cynical people believe everyone else operates with the same cynicism as themselves. There is no good faith. There cannot be a rule of law. Absolute power is the objective.

I fear that this is where the U.S is now. In any other democratic country the idea that a political leader existed outside the rule of law, for “official acts” or otherwise, would be absurd. For inciting an insurrection and attempting to subvert an election result, justice would be swift. The principle would be fundamental, an endless web of caveats would be inconsequential. Deciding such a case before the next election would be deemed an imperative. Political party or ideology would be irrelevant.

Although any ruling on immunity for “official acts” would need to be one made in the abstract, the Supreme Court cannot help but see the nature of the man before them. The distinction between what is an “official act” and what isn’t is not one that Trump himself will make. Any ruling that endorsed this distinction would be – were Trump to return to the White House – not a ruling on immunity, but one of impunity. He would see this as a wide open door, and plough headlong through it.

To those of us outside the U.S, this would intensify the country’s politics as a dangerous theatre of the absurd. A country so mired in partisanism, so deep inside the turbulent emotions of political identity, that a neutral principle simply cannot be understood, let alone defended.

A Supreme Court should be above such emotions, but due to these pervasive social and structural forces that push forcefully up against it, it seems incapable of doing anything but channel them. In doing so, it may – eventually – make a decision against its own role in America’s constitutional order.

1. This journalist habit now increasingly includes other forms of designation like race. Further undermining the idea of objectivity.