The New Right Wants Activist Judges to Rule, Not the People

Liberal “anti-populists” often portray grassroots democracy as more a threat than an asset. But as reactionaries turn to judges to win their political battles for them, it’s time the Left got serious about putting power in the hands of the majority.

People wait in line outside the US Supreme Court in Washington, DC, on February 21, 2023. (Jim Watson / AFP via Getty Images)


BYMICHAEL WILKINSON
03.05.2023
Jacobin

Interviewed in 1991, after more than a decade of Republican rule, liberal legal scholar Ronald Dworkin was asked whether he feared that, if the political tide changed, his model of an activist supreme court might be wielded by conservatives to strike down progressive legislation. Dworkin’s answer was revealing: yes, he had “nightmares” that it could happen; that placing his faith in the judiciary could be “betting on the wrong horse.”

He conceded that if this were to happen, it would weaken his faith in the principle of a powerful court overseeing a liberal interpretation of the constitution. But, he added, he wouldn’t be around to see that. And, he concluded, it was a gamble he was willing to take, because it was a structure worth preserving. He had elaborated this structure in his work in painstaking detail, advocating a principle of integrity centered on a “moral reading” of the constitution, which would be developed through the rulings of Herculean (liberal) judges.

Dworkin’s interviewer, human rights lawyer and academic Conor Gearty, then a strong opponent of judicial review, highlighted the precariousness of Dworkin’s apparently principled position in a system where political and judicial power were intertwined. He joked that perhaps Dworkin was willing to take the gamble in the hope he would be appointed to the Supreme Court by a future Democrat, President Mario Cuomo (father of the recent governor of New York). Gearty noted how grim prospects were from a progressive perspective: the celebrated constitutional right to abortion, protected since 1973 in Roe v. Wade, was in danger of being abolished over the next twelve months, the US Supreme Court having moved a long way from the liberal Warren Court of the 1950s and 1960s, and by the early 1990s having the numbers to overrule Roe.

Gearty was ahead of himself. In the ruling in Planned Parenthood v. Casey, a year after his interview with Dworkin, the Supreme Court upheld the essentials of Roe and established that the due process clause of the Fourteenth Amendment protected a woman’s right to an abortion prior to fetal viability. But fast forward thirty years, and in Dobbs v. Jackson Women’s Health Organisation, decided in June last year after a controversial leak of the draft opinion, the court finally overturned Roe (as well as Planned Parenthood v. Casey).

With the appointment of Justice Amy Coney Barrett, controversially nominated by Donald Trump just before the 2020 presidential election, the ideological shift of the court had been cemented. But no legislation needed to be struck down for this conservative coup to take effect. Social conservatives had already passed legislation against abortion in several states, in anticipation of the ruling by a newly configured court. A challenge to one of these trigger laws, in Mississippi, had led to the ruling in Dobbs. With a majority of justices holding that there is no constitutional right to abortion, the green light was given to state legislation banning it. Doubts were also cast over the status of other rulings protecting constitutional rights, such as the right to same-sex marriage.

Had Dworkin’s worst nightmare come to pass? Not exactly, or, at least, not yet. The fear expressed in his 1991 interview was about progressive majorities being thwarted by conservative justices; Dobbs merely returned the issue to the states via a new, but in other ways traditional, interpretation of the Constitution. Some states have since adopted or begun to enforce laws banning abortion; but others have expanded abortion rights and amended state constitutions to include them, including California and Michigan. In Vermont, voters overwhelmingly chose to approve, by referendum, an amendment to guarantee sexual and reproductive freedoms, including the right to abortion. The backlash against Dobbs may well have politically benefitted the Democratic Party, boosting support for Biden and the Democrats in recent midterms.
Will of the Majority?

But the current situation is even more unsettling than the nightmares envisaged by Dworkin in 1991. Back then, the mainstream debate in Anglo-American constitutional theory took place on the terrain of the justification of constitutional review of legislation and over the so-called counter-majoritarian dilemma: Why should the judicial branch be entitled to overrule the will of the majority? It pitted scholars such as Dworkin against those keen to defend majoritarian democracy as represented by Westminster-style parliamentary regimes.

As a matter of US constitutional law, however, Dworkin’s antagonists were elsewhere. The justices spearheading the conservative turn of the Supreme Court, such as Antonin Scalia, Clarence Thomas, Samuel Alito, and now Barrett, are associated with “originalism,” the belief that the constitution should be interpreted as originally intended. In the interview with Gearty (as well as in his broader body of writing), Dworkin explicitly dismissed that theory, by arguing that it doesn’t answer, but merely defers, the key question: What is the best way of interpreting that intention given all the possible ways it could be understood?

That ambiguity, and the flexibility of meaning of the original text, allowed originalism to be taken up by an array of constitutional scholars, including progressives who argued that the meaning evolves to adapt to new circumstances. Some even proposed hybrids of originalism and living constitutionalism under the rubric of “living originalism.” While diverse in detail, a feature of these debates over constitutional interpretation was that the political radicalism of originalists, as well as of their adversaries, was limited by the authority vested in the constitution itself. To the counter-majoritarian problem, these scholars had an answer unavailable to Dworkin: the founding constitutional text is underscored by the authority of “the people,” whether dead or living.

The terms of the debate began to change after September 11, 2001, when it transpired that executive power posed the real threat to civil and political liberties, as waves of emergency measures were enacted, ostensibly in response to terrorist threats concurrent with the spread of the global “war on terror.” Measures would be pushed through with little or no oversight or parliamentary scrutiny, and often by liberal governments: from torture and drone attacks, to surveillance and detention without trial, liberties were traded off for security. The massive “infrastructure of fear” created in the wake of 9/11 survived, even as the threat dissipated. This was no tyranny of a legislative majority; it was a power grab by the executive.
New Right Project

During the most recent decade, liberals (in Europe as well as the United States) have been tormented by a more troubling prospect than a piece of rogue legislation or a discrete legal transgression: the fear that conservative populists will rip up the basic rules of the game in alliance with judicial elites, and with the vast administrative state built up over the previous decades at their disposal. It is against this background that a new brand of conservatism is emerging, which rejects fidelity to the constitution and, ironically, appropriates Dworkin’s work to circumvent it.

This New Right project speaks the language of judicial deference while embracing the tremendous power and governing apparatus of the administrative state. Unfettered by any allegiance to the constitutional text, or to the principle of popular sovereignty underwriting constitutional authority, it argues for a much more aggressive and unapologetic conservative agenda. It is based, like Dworkin’s project, on political morality, but it is directed in polar opposition to his liberal worldview and without any constraints of integrity.


This new constitutional theory is based not on a reading of the constitutional text at all, but on the principles of natural law as declared by medieval theologians such as Thomas Aquinas. It abandons the liberal emphasis on the equal protection of rights in favor of government directed toward the “common good.” But it doesn’t go far in saying what that means — beyond stipulating the rejection of progressive rights such as same-sex marriage and freedom of speech and dismissing libertarian rights to unfettered use of individual property. And it doesn’t advocate any project of explicit constitutional change to get there.

While confused as constitutional theory, politically, the idea of the New Right appears to be to unite a “post-liberal” bloc in the United States, galvanizing those alienated from liberal elites and seizing on the widespread discontent with the vast inequalities in American society (and replicated elsewhere). In this way it has attracted support beyond the conservative right. But it offers up no actual political economy to substitute for neoliberalism or to redress its various social deficits. Should it therefore be ignored, or dismissed because of its obvious opportunism?

A closer look suggests that the rub lies elsewhere. In the new battle lines being drawn, the terrain has shifted from the evergreen debate about the legitimacy of judicial review to the situational one of justifying unbound executive power. But “situational,” here, is given the broadest meaning; the moment of exception is not restricted to any imminent threat. The judicial power that Dworkin’s model appeared to celebrate is now to be manipulated to sanction dramatic and indefinite executive intervention, including the dictatorial powers necessary to restore social order and revitalize the common good. A conservative elite will replace the liberal elitism of the past decades, unleash itself from rhetorical ties to the existing settlement and overturn a century of mistaken constitutional practice.

How is this to be achieved? The New Right dismisses appeals to popular sovereignty, as well as day-to-day democratic legitimacy. It gives democracy no particular value. Deference to the legislature is urged only to the extent necessary to ensure the stability of the political settlement. But stability, it turns out, is highly subjective. In an emergency situation, it is trumped by considerations of natural law.

In an unsettling echo of German jurist Carl Schmitt, the exception justifies the use of extraordinary power to return to the norm, only the norm is now said to have been extinguished a century ago with the interwar break from classical jurisprudence and buried with the postwar progressivism that followed. Stability, though valued by conservatives, must not become fetishized. The true end of government is to secure the natural law as understood in Catholic social doctrine; institutional hurdles must give way.
Constitutional Renewal?

If the hope is that the end justifies the means, the “bet” taken by the New Right appears quite different from the originalists’ one — and a far heftier gamble. But why take the bet at all? Conservatives have largely been able to pursue their projects or at least frustrate those of their opponents using the vehicles of the Constitution and the existing institutions of power. It was the electoral college that put Trump into the White House, not the popular vote.

The New Right suggests no program of democratic or constitutional renewal. As Corey Robin noted in the lead up to the 2020 presidential elections, “Conservatism has ceased to be a political project capable of creating hegemony through majoritarian means.” And despite the appropriation of liberalism’s jurisprudential hero, neither will it be able to do so through judicial fiat alone. If not through constitutional or through majoritarian means, then how? From the perspective of this new movement, Dworkin’s mistake was not to bet on Hercules, but to put Hercules in the wrong role. Its remaining hope appears to lie with an authoritarian figure of Herculean power to restore the natural order of things in a period of deep crisis for the US system of constitutional government. Are all bets off?

Liberals themselves have long given up pushing for a vibrant democracy or, like Dworkin, they have an awkward relationship with it; often preferring to double-down on constrained versions of democracy in their rhetorical battles against populism. It has been critical legal scholars in the United States who have consistently argued that the Constitution was never meant to install a democracy (an argument flatly rejected by liberals like Dworkin) and who now insist that the United States needs radical constitutional renewal in order to overturn political elitism and embrace majoritarianism and grassroots democracy.

In his seminal work in jurisprudence, Dworkin projected the constitutional contest as a two-horse race, between Court and Congress. He missed the threat of expanding executive power. But in seeing only a contest between institutional authorities, he also missed the diminishing status of democracy in practice. He was betting not only on the wrong horse, but on the wrong race.

CONTRIBUTOR
Michael Wilkinson is a professor of law at the London School of Economics and author of Authoritarian Liberalism and the Transformation of Modern Europe.

OFFICIALLY A FASCIST STATE
Israel president urges consensus after judicial changes pass



ILAN BEN ZION
Tue, February 21, 2023 at 3:38 AM MST·5 min read

JERUSALEM (AP) — Israel's president Tuesday called on Prime Minister Benjamin Netanyahu’s coalition to seek dialogue and compromise after it pushed ahead with a controversial judicial overhaul in a turbulent parliamentary session overnight.

Isaac Herzog said it was a “difficult morning” following the late-night parliamentary vote that saw two contentious pieces of legislation pass a preliminary hurdle.

The legislation is part of sweeping changes proposed by the government that have prompted vocal criticism in Israel and abroad, drawn tens of thousands of protesters to the streets and spooked investors and financial markets.

On Tuesday, the dollar gained over 2% against the shekel, continuing a monthlong slide that has seen the Israeli currency lose over 5% of its value against the dollar. Several Israeli companies have said they are withdrawing money from the country, while Israeli newspapers have reported even larger withdrawals of cash as investors have grown jittery about the business climate.

Critics say the judicial overhaul underway will concentrate power in the hands of the ruling coalition in Israel's parliament, the Knesset, and erode the democratic system of checks and balances.

Netanyahu and his allies insist the changes will better curb an overly powerful Supreme Court.

"Many citizens across Israeli society, many people who voted for the coalition, are fearful for national unity,” Herzog said at a conference organized by the Yedioth Ahronoth newspaper. He urged Netanyahu and his allies to enable dialogue to reach a consensus on judiciary reform.

Late on Tuesday, Netanyahu issued an appeal for dialogue, saying he believed that the gaps could be reduced or closed. “Let's talk, here and now, without preconditions or excuses, so together we can achieve a broad agreement for the good of all citizens of Israel,” he said.

His critics have called on Netanyahu to freeze the legislation and start negotiations. Opposition leader Yair Lapid mocked the premier's appeal.

“Citizens of Israel, I have no pleasant way to say this: Prime Minister Netanyahu is lying,” Lapid said in a statement. “We have been trying to hold talks with them for many weeks.”

Herzog's remarks came the morning after tens of thousands of Israelis protested outside the parliament ahead of the vote, the second mass demonstration in Jerusalem in recent weeks.

Israeli Palestinians, a minority that may have the most to lose by the overhaul, have mostly stayed on the sidelines, due to discrimination they face at home and Israel’s ongoing 55-year occupation of their Palestinian brethren in the West Bank.

After more than seven hours of debate that dragged on after midnight, Netanyahu and his allies passed two clauses in the package of proposed changes that seek to weaken the country's Supreme Court and further empower ruling parliamentary coalitions.

With a 63-47 vote, the Knesset approved measures that give the governing coalition control over judicial appointments and curtail the Supreme Court’s ability to review the legality of major legislation known as “Basic Laws.” The bills still require two additional readings in parliament to pass into law.

Also planned are proposals that would give the parliament the power to overturn Supreme Court rulings and control the appointment of government legal advisers. The advisers currently are professional civil servants and critics say the new system would politicize government ministries.

The United States has called for restraint, and on Tuesday, the United Nations human rights chief called on Israel “to pause the proposed legislative changes and open them up for wider debate and reflection.”

"Such issues at the heart of rule of law deserve the fullest consideration in order to ensure that any changes promote, rather than diminish, the ability of the judiciary — and other branches of Government — to protect the rights of all people in Israel,” Volker Türk, the U.N.'s high commissioner for human rights, said in a statement.

German Justice Minister Marco Buschmann appeared to express concerns about the Israeli plan after a two-day visit that included a meeting with the overhaul’s architect, Justice Minister Yariv Levin, and two of the people targeted by the changes, Attorney General Gali Baharav-Miara and Supreme Court President Esther Hayut.

It is “clear for me that we must fundamentally protect and strengthen the institutions of our liberal democracies,” Bushmann said in a statement, “because fundamental rights are, by their nature, minority rights and the majority must never have the last word.”

According to a survey by the Israel Democracy Institute think tank published Tuesday, 66% of respondents think the Supreme Court should have the authority to strike down laws incompatible with the Basic Laws, and 63% think the current system for picking judges — a panel made up of politicians, judges and attorneys — should be maintained.

Almost three-quarters of the 756 respondents — 72% — said there should be compromise between the opposing political camps about proposed judicial changes.

Herzog, who serves as the largely symbolic head of state, has tried to broker dialogue between the increasingly polarized camps and has called on Netanyahu and his allies to delay the contentious judicial overhaul.

Netanyahu's governing coalition is made up of ultranationalist and ultra-Orthodox parties and took office in late December, after the country's fifth parliamentary elections in less than four years. The political deadlock was largely over the long-time leader's fitness to serve as prime minister while on trial for fraud, breach of trust and accepting bribes, charges Netanyahu has denied.

___

Associated Press writer Laurie Kellman contributed from Tel Aviv, Israel.

SEE

 

https://plawiuk.blogspot.com/2023/02/the-carl-schmitt-reform-israeli.html

https://plawiuk.blogspot.com/2023/02/israelis-continue-weekend-protests.html

https://plawiuk.blogspot.com/2023/02/israeli-judicial-reform-legislation.html

Israeli government advances judicial overhaul despite uproar


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Israelis protest against plans by Prime Minister Benjamin Netanyahu's new government to overhaul the judicial system, near the Knesset, Israel's parliament in Jerusalem, Monday, Feb. 20, 2023. Israel's government is pressing ahead with its contentious plan to overhaul the country's legal system. A vote in parliament on Monday is due despite an unprecedented uproar that has included mass demonstrations, warnings from military and business leaders and calls for restraint from the U.S. 

(AP Photo/Ohad Zwigenberg)


LAURIE KELLMAN and ILAN BEN ZION
Sun, February 19, 2023


JERUSALEM (AP) — Prime Minister Benjamin Netanyahu’s government on Tuesday for the first time advanced a plan to overhaul the country’s legal system, defying a mass uproar among Israelis and calls for restraint from the United States.

The vote marked only preliminary approval for the plan. But it raised the stakes in a political battle that drew tens of thousands of protesters into the streets, sparked criticism from influential sectors of society and widened the rifts in an already polarized country.

The 63-47 vote after midnight gave initial approval to a plan that would give Netanyahu’s coalition more power over who becomes a judge. It is part of a broader package of changes that seeks to weaken the country’s Supreme Court and transfer more power to the ruling coalition.

Netanyahu’s ultrareligious and ultranationalist allies say these changes are needed to rein in the powers of an unelected judiciary. Critics fear that judges will be appointed based on their loyalty to the government or prime minister — and say that Netanyahu, who faces trial on corruption charges, has a conflict of interest in the legislation.

The showdown has plunged Israel into one of its most bitter domestic crises, with both sides insisting that the future of democracy is at stake in their Middle Eastern country. Israeli Palestinians, a minority that may have the most to lose by the overhaul, have mostly stayed on the sidelines, due to discrimination they face at home and Israel’s ongoing 55-year occupation of their Palestinian brethren in the West Bank.

The legislators cast their votes after a vitrolic debate that dragged on past midnight. During the session, opposition lawmakers chanted, “shame,” and wrapped themselves in the Israeli flag — and some were ejected from the hall.

Thousands were rallying outside the Knesset, waving Israeli flags and holding signs reading “saving democracy!” Earlier in the day, protesters launched a sit-down demonstration at the entrance of the homes of some coalition lawmakers and briefly halted traffic on Tel Aviv’s main highway.

Netanyahu accused the demonstrators of violence and said they were ignoring the will of the people who voted his coalition into power last November.

“The people exercised their right to vote in the elections and the people’s representatives will exercise their right to vote here in Israel’s Knesset. It’s called democracy,” Netanyahu said, though he left the door open for dialogue on the planned changes.

The vote on part of the legislation is just the first of three readings required for parliamentary approval, a process that is expected to take months.

Nonetheless, the opposition, including tens of thousands of protesters in front of the Knesset in Jerusalem and in Tel Aviv, saw Monday’s vote as the coalition’s determination to barrel ahead.

“We are fighting for our children’s future, for our country’s future. We don’t intend to give up,” said opposition leader Yair Lapid.

Israel’s figurehead president has urged the government to freeze the legislation and seek a compromise with the opposition, a position supported by most polls.

Leaders in the booming tech sector have warned that weakening the judiciary could drive away investors.

The overhaul has prompted otherwise stoic former security chiefs to speak out, and even warn of civil war. The plan has even sparked rare warnings from the U.S., Israel’s chief international ally.

U.S. Ambassador Tom Nides told a podcast over the weekend that Israel should “pump the brakes” on the legislation and seek a consensus on reform that would protect Israel’s democratic institutions.

His comments drew angry responses from Netanyahu allies, telling Nides to stay out of Israel’s internal affairs.

The debate raged Monday from the floor of the Knesset to flag-waving demonstrations in Jerusalem and Tel Aviv.

Simcha Rothman, a far-right lawmaker leading the legislative initiative, presented the proposal to the parliament. Overhead in the viewing gallery, a spectator banged on the protective glass and was carried away by guards.

A fellow Religious Zionism party politician posted a photo on Twitter with Rothman ahead of the vote, celebrating with whisky and sushi.

Last week, some 100,000 people demonstrated outside the Knesset as a committee granted initial approval to the plan. On Monday, the crowds returned, waved Israeli flags, blew horns, and held signs reading “saving democracy.”

“All the steps that are going to take place now in the Knesset will change us to a pure dictatorship,” said Itan Gur Aryeh, a 74-year-old retiree. “All the power will be with the government, with the head of the government and we’ll all be without rights.”

Earlier in the day, protesters launched a sit-down demonstration at the entrance of the homes of some coalition lawmakers and briefly halted traffic on Tel Aviv’s main highway. Hundreds waved Israeli flags in the seaside city and further up the coast in Haifa, holding signs reading “resistance is mandatory.”

While Israel has long boasted of its democratic credentials, critics say that claim is tainted by the country’s West Bank occupation and the treatment of its own Palestinian minority.

Israel’s Palestinian citizens, who make up about 20% of the population, have the right to vote but continue to suffer discrimination in areas like the job and housing markets. In the West Bank, Jewish settlers can vote in Israeli elections and are generally protected by Israeli laws, while Palestinians in the same territory are subject to military rule and cannot vote.

The parliamentary votes seek to grant the ruling coalition more power over who becomes a judge. Today, a selection committee is made up of politicians, judges and lawyers — a system that proponents say promotes consensus.

The new system would give coalition lawmakers control over the appointments. Critics fear that judges will be appointed based on their loyalty to the government or prime minister.

A second change approved Monday would bar the Supreme Court from overturning what are known as “Basic Laws,” pieces of legislation that stand in for a constitution, which Israel does not have. Critics say that legislators will be able to dub any law a Basic Law, removing judicial oversight over controversial legislation.

Also planned are proposals that would give parliament the power to overturn Supreme Court rulings and control the appointment of government legal advisers. The advisers currently are professional civil servants, and critics say the new system would politicize government ministries.

Critics also fear the overhaul will grant Netanyahu an escape route from his legal woes. Netanyahu has been on trial for nearly three years for charges of accepting bribes, fraud and breach of trust. He denies wrongdoing and says he is the victim of a biased judicial system on a witch hunt against him.

Israel’s attorney general has barred Netanyahu from any involvement in the overhaul, saying his legal troubles create a conflict of interest. Instead, his justice minister, a close confidant, is leading the charge.

On Sunday, Netanyahu called the restrictions on him “patently ridiculous.”

___

Kellman reported from Tel Aviv, Israel.

THE CARL SCHMITT REFORM

Israeli government advances controversial judicial reforms

Plan would give Prime Minister Netanyahu’s coalition more power over who becomes a judge

Prime Minister Benjamin Netanyahu attends a vote on the plan to overhaul Israel's legal system. Reuters

The National
Feb 20, 2023

Prime Minister Benjamin Netanyahu’s Israeli government voted to move on a plan to overhaul the country’s legal system on Tuesday.

The vote sparked protests in Israel and calls for calm from the US and other nations.

It gave initial approval to a plan that would give Mr Netanyahu’s coalition more power over who becomes a judge.

It is part of a broader package of changes that seeks to weaken the country’s Supreme Court and transfer more power to the ruling coalition.

READ MORE
Israel's Netanyahu calls for calm amid opposition to judicial reforms

"A great night and a great day," Mr Netanyahu tweeted after the preliminary vote.

He won 64 of the Knesset's 120 seats, making it likely his two revisions on the agenda, the other limiting the Supreme Court's ability to strike down legislation, will be ratified.

Polls have shown most Israelis want the reforms slowed to allow dialogue, or put off completely, Reuters reported.

The vote on part of the legislation is the first of three readings required for parliamentary approval, a process that is expected to take months.


The opposition, including tens of thousands of protesters in front of the Knesset in Jerusalem and in Tel Aviv, saw Monday’s vote as the coalition’s determination to barrel ahead.

“We are fighting for our children’s future, for our country’s future. We don’t intend to give up,” said opposition leader Yair Lapid.


After the shekel fell 1 per cent weaker versus the dollar, many economists and leaders of high-tech and banking have warned of investor and capital flight from Israel.

But Knesset Finance Committee chairman Moshe Gafni, the head of the ultra-Orthodox United Torah Judaism party, said: "There is no link between the justice system reforms and any blow to Israel's economy. Any attempt at linkage is politicised."

Opposition politicians protested against Mr Gafni's statement, calling the committee "a circus".

Updated: February 21, 2023

The International Political Thought of Carl Schmitt: Terror, Liberal W (routledge.com)

https://aeon.co/essays/carl-schmitts-legal-theory-legitimises-the-rule-of-the-strongman

Carl Schmitt's legal theory legitimises the rule of the strongman - Aeon 

Jun 12, 2020 ... Within that tradition, one thinker stands out: the conservative German constitutional lawyer and political theorist Carl Schmitt (1888-1985).

https://theconversation.com/carl-schmitt-nazi-era-philosopher-who-wrote-blueprint-for-new-authoritarianism-59835

Carl Schmitt: Nazi-era philosopher who wrote blueprint for New ... 

May 25, 2016 ... Carl Schmitt, a brilliant jurist and political philosopher, both predicted the collapse of the Weimar Republic, and was – for a short time – a ...

https://mitpress.mit.edu/9780262192446/political-theology

Political Theology - MIT Press 

Studies in Contemporary German Social Thought. Political Theology. Four Chapters on the Concept of Sovereignty. by Carl Schmitt. Translated by George Schwab.

Tens of thousands in Israel rally against 'dictator's bill' as lawmakers vote on judicial overhaul

Kenny Stancil, Common Dreams
February 20, 2023

Israeli Prime Minister Benjamin Netanyahu GALI TIBBON POOL:AFP:File

Tens of thousands of people opposed to the far-right Israeli government's proposed judicial overhaul once again hit the streets of Jerusalem and Tel Aviv on Monday, where they implored lawmakers to vote against the measures during the afternoon's first reading.

"On the morning of the vote, small groups of protesters sat down outside the front doors of some coalition lawmakers' homes in a bid to block them from leaving for parliament. They were removed by the police," The New York Timesreported. After blocking highways to Jerusalem, protesters gathered outside parliament, where doctors "set up a mock triage station for 'casualties of the judicial reform.'"

Despite weeks of massive demonstrations, members of the Israeli Knesset are expected to pass the legislation, which is supported by right-wing Prime Minister Benjamin Netanyahu and his close ally, Justice Minister Yariv Levin.

If that happens, the Supreme Court's ability to overrule parliament would be weakened, as a simple 61-vote majority could override the court's decisions; the Supreme Court's ability to review and strike down attempts to change Israel's 13 quasi-constitutional "Basic Laws" would be abolished; and the ruling coalition would gain control of the Judicial Appointments Commission, a panel tasked with picking new judges.

The legislation must be approved three times to become law, with Monday afternoon's vote marking the first step in the process. Israeli President Isaac Herzog, a largely ceremonial figure, and opposition leader Yair Lapid have pleaded for Netanyahu's government to delay the legislation, to no avail.

On the eve of the initial vote, Levin said, "We won't stop the legislation now, but there is more than enough time until the second and third readings to hold an earnest and real dialogue and to reach understandings."

But as the Times noted, "critics have dismissed the government's position as disingenuous, arguing that once the bills have passed a first vote, only cosmetic changes will be possible."

Organizers, for their part, said Monday that "with the passage of the dictator's bill, the protests will intensify," according toi24 News.

Opponents "say the proposed overhaul would place unchecked power in the hands of the government, remove protections afforded to individuals and minorities, and deepen divisions in an already fractured society," the Times reported. They also worry that "Netanyahu, who is standing trial on corruption charges, could use the changes to extricate himself from his legal troubles."

In addition, Al Jazeerareported, opponents fear that "Netanyahu's nationalist allies want to weaken the Supreme Court to establish more settlements on land the Palestinians seek for a state. But settlements, which are considered illegal under international laws, have continued under successive Israeli governments. Nearly 600,000-750,000 Israelis now live in illegal settlements in the occupied West Bank and East Jerusalem."

Last week, Netanyahu's administration granted retroactive "legalization" to nine such settlements, and the prime minister has also intensified deadly raids, killing at least 50 Palestinians in occupied territories so far this year.

A right-wing neutering of the Supreme Court could exacerbate Israel's regime of violent dispossession and ethnic cleansing.

But the weekslong demonstrations against the proposed judicial overhaul "include very few Palestinians," Jewish Currents editorPeter Beinart observed Sunday in a Times op-ed titled "You Can't Save Democracy in a Jewish State."

"In fact, Palestinian politicians have criticized them for having, in the words of former Knesset member Sami Abu Shehadeh, 'nothing to do with the main problem in the region—justice and equality for all the people living here,'" Beinart wrote.

"The reason is that the movement against Mr. Netanyahu is not like the pro-democracy opposition movements in Turkey, India, or Brazil—or the movement against Trumpism in the United States," he added. "It's not a movement for equal rights. It's a movement to preserve the political system that existed before Mr. Netanyahu's right-wing coalition took power, which was not, for Palestinians, a genuine liberal democracy in the first place. It's a movement to save liberal democracy for Jews."

For Palestinians, Israel is not a democracy but rather an apartheid state, an assessment shared by numerous human rights groups around the world. The Israeli government has enacted discriminatory laws against Palestinians and colonized their land for decades, including under Lapid.

According to Beinart: "The principle that Mr. Netanyahu's liberal Zionist critics say he threatens—a Jewish and democratic state—is in reality a contradiction. Democracy means government by the people. Jewish statehood means government by Jews. In a country where Jews comprise only half of the people between the Jordan River and the Mediterranean Sea, the second imperative devours the first."

"Ultimately, a movement premised on ethnocracy cannot successfully defend the rule of law," he added. "Only a movement for equality can."

ISRAEL EMBRACES ITS INNER NAZI JUDGE* 

Israelis continue weekend protests against Netanyahu's judicial overhaul plans

First reading of proposals are set to take place in Knesset on Monday, with opposition calling for additional protests and partial strikes

Israeli protesters attend a rally in central Tel Aviv, on 11 February, against controversial legal reforms being touted by the country's hard-right government (AFP)

By MEE and agencies
Published date: 11 February 2023 

Tens of thousands of Israelis took to the streets on Saturday for another week of protests against judicial overhaul plans by Prime Minister Benjamin Netanyahu's new government which critics say threaten democratic checks on ministers by the courts.

The plans, which the government says are needed to curb overreach by judges, have drawn fierce opposition from groups including lawyers, and raised concerns among business leaders, widening already deep political divisions in Israeli society.

Israel's military 'justice' system is turning in on itselfRead More »

"We (are) ...here in order to demonstrate against the government of Israel under Netanyahu, which in our belief is against democracy and are going to do anything they can in order to take out democracy of Israel," said Illan Bendori, 70, at a protest in Tel Aviv.

Netanyahu has dismissed the protests as a refusal by leftist opponents to accept the results of last November's election, which produced one of the most right-wing governments in Israel's history.

"We are ...very proud of our democracy and he wants to make Israel something else. We will not agree, we will do everything in our power to stop it," Hadar Weis, 61, told Reuters at the protest in Tel Aviv.

The protesters say Israeli democracy would be undermined if the government succeeds in pushing through the plans, which would tighten political control over judicial appointments and limit the Supreme Court's powers to overturn government decisions or Knesset laws.

Additional protests and partial strikes are called for Monday when a first reading of the proposals is set to take place in the parliament.

Israel's N12 news released a poll on Saturday revealing that 62 percent of Israelis want the proposed judicial plans to be either paused or halted altogether.

On Cusp of Judicial Reform Vote, Israelis Step Up Opposition

Protesters against the Israeli government's proposed judicial reforms march in Tel Aviv on February 11, 2023. 

(Dario Sanchez/The Media Line)

MOHAMMAD AL-KASSIM
02/12/2023

Tens of thousands protest in Israel for 6th week against government’s efforts to weaken Israel’s Supreme Court and wrest control of judicial appointments

Tens of thousands of Israelis rallied for the sixth week against their government’s planned legal reform of the country’s judicial system. The largest protests on Saturday night were held in Tel Aviv, with several other large demonstrations taking place around the country.

The protesters were rallying to condemn proposed controversial judicial reforms pushed by Prime Minister Binyamin Netanyahu’s right-wing government, which as written would give the government control over the appointment of new judges and weaken the Supreme Court.

The protests have become a weekly event on Saturday nights since the prime minister’s new government – labeled the most extreme, right-wing government in Israel’s history – took office in late December.


Women protest against the Israeli government’s proposed judicial reforms rally in Tel Aviv on February 11, 2023. (Dario Sanchez/The Media Line)

Moran Katzenstein, founder of Bonot Alternativa, a feminist group that works to counter discrimination and violence against women, told The Media Line that she is most concerned about the proposed changes that will impact the Supreme Court.

Katzenstein, who has attended every demonstration, accuses the government of being “misogynists” and “chauvinists.”

“Now it feels like this is a real milestone in discrimination against women, and this is where all women’s organizations are partnering together to demonstrate and to show our protest against the activity of the government,” she said.

She says she does not want the government to collapse, but calls on the “more rational” group of lawmakers within the government to take a stand.

“I think there are enough people in the government that can stop what’s going on themselves,” she said.

“I’m very concerned about what’s going to be with my beloved country after the changes that this government intends to do. It won’t be the same Israel as everybody knows until now,” Yaron, who drove an hour from Jerusalem to attend the demonstration in Tel Aviv, told The Media Line.


Protesters against the Israeli government’s proposed judicial reforms rally in Tel Aviv on February 11, 2023. (Dario Sanchez/The Media Line)

He added that “just 75 years after independence and nobody can be sure that we are going to keep being an independent and democratic country anymore.”

He called on President Isaac Herzog to intervene.

“I expect from our president to be more active not to let them do it,” he said.

Netanyahu returned to power following elections in November, the fifth in three years, at the head of the country’s most religious, nationalist coalition ever.

His proposed judicial reforms would allow Israel’s parliament to override any Supreme Court decision with a simple majority of 61 lawmakers in the 120-seat body, as well as boost political control over the system through which judges are appointed.

A first reading of the bill is scheduled for Monday.

Leaders of the protest movement opposing the reforms have called for a country-wide general strike on the same day.

Many young Israelis were in the Tel Aviv crowd, among them first-timer Gal, 21, who is calling on people his age to be more active and take a larger role “to protect the future of the country.”

“It’s nice that people older than me are coming to these protests because it’s important but, at the end of the day, people who are going to be affected in the long run are people my age,” he told The Media Line.

A sea of Israeli flags seen in Tel Aviv at the protest against the Israeli government’s proposed judicial reforms on February 11, 2023. (Dario Sanchez/The Media Line)

Gal, like many of the protesters, is demanding the resignation of Netanyahu, who is fighting corruption charges in court. He accuses the prime minister of putting his personal interests ahead of the government.

“We have a prime minister that’s trying to change the judicial system so he can get away with being corrupt. He is trying in every way to weaken the judiciary system to escape his trial,” according to Gal.

Netanyahu denies the charges against him, which include bribery, fraud and breach of trust.

Israel’s former attorney general, Avichai Mandelblit, accused Netanyahu of advancing the controversial reforms in order to bring an end to his ongoing criminal trial.

Mandelblit said in an interview broadcast Thursday that the proposed overhaul to the judicial system would be “regime change” that would “eliminate the independence of Israel’s legal system from end to end.”

*CARL SCHMITT

Israeli judicial reform legislation won't be halted, justice minister says

ISRAEL EMBRACES NAZI JUDGE CARL SCHMITT

Weekly cabinet meeting at the Israeli Prime Minister's office in Jerusalem

Sun, February 5, 2023

JERUSALEM (Reuters) - Israel's justice minister said on Sunday he would not freeze "for even a minute" the legislative process for proposed judicial reforms that have drawn widespread condemnation both domestically and globally.

Israel's Justice Minister Yariv Levin's comments to Hebrew media's Channel 13 followed a statement earlier in the day from Israeli president Isaac Herzog, calling for the process to be temporarily halted.

"Stop the whole process for a moment, take a deep breath, allow for dialogue because there is a huge majority of the people who would like dialogue," Herzog said in the statement.

The plans to strengthen political control over appointments of judges, including the Supreme Court, while weakening that body's ability to overturn legislation or rule against the government, have brought tens of thousands of Israelis onto the streets in nationwide protests, widening already deep political divisions in Israeli society.

The government of Prime Minister Benjamin Netanyahu says the reforms are needed to curb overreach by judges.

Critics say the proposed changes will politicize the judiciary and compromise its independence, foster corruption and harm Israel's legal protection abroad and its economy.

The Israeli president, who was appointed and not elected, has previously called for all sides of the debate to defuse the tension and try to reach a common understanding.

(Reporting by Emily Rose; Editing by Frank Jack Daniel)

Neoliberalism Against Democracy?: Wendy Brown’s “In the Ruins of Neoliberalism” and the Specter of Fascism

  By Martijn Konings

In the Ruins of Neoliberalism

WENDY BROWN

POLITICAL DEVELOPMENTS of recent years have pushed the question of fascism to the forefront of many people’s minds. The word was used occasionally during the first decade of the 21st century, as a way of condemning the policies of the Bush administration. But that was typically in a spirit of purposeful exaggeration. In the era of Trump, claims that our political situation is incipiently fascist are losing their theatrical character. Predictably enough, such concerns are met by loud objections that the f-word is not appropriate, subject to inflation, and should be reserved for describing specific historical instances. But more and more, such objections feel like desperate attempts to deny the growing pertinence of the word. When the mainstream media pundits and outlets debate whether or not it is permissible to refer as “concentration camps” to the border camps where people of color are locked up and abused, such desperation becomes palpable.

Of course, there are no easy historical parallels to draw. Trump’s self-identification with the spirit of American do-it-yourself individualism may be laughable, but it does put him at some distance from the corporatist spirit of interwar fascism. And it is hard to imagine him being actively interested in or capable of organizing a systematic militarization of everyday life. But perhaps the main, and most worrisome, argument used to soothe political spirits is that Trump’s fascism has remained stuck at the level of rhetoric, its forward movement blocked both by his own incompetence and by the “deep state,” the historically grown layers of bureaucratic power that will put the brakes on the implementation of any radical plan. Such arguments work with a naïve understanding of how political rhetoric and practice interact.

If there are lessons to learn from the 1930s, they would certainly have to include that the most violent material horrors start out with the power of rhetoric and that routine-driven bureaucracies can come to serve as reliable functionaries of fascist regimes. In fact, the growing sense that fascism is in the air has everything to do precisely with this renewed emotional charge, the effectiveness with which Trump’s virulent rhetoric taps into the grievances of a white working or middle class and encourages it to embrace, revitalize, and act on its prejudices. After all, Trump’s policies are certainly a few steps up from those pursued by the Bush administration, but they can hardly be said to represent a drastic escalation of them. The most significant shift is that whereas the latter still dressed up its policies in terms of the unifying language of national security and opportunity for all (no matter how perfunctory this may have sounded), Trump is far more forthright about the fact that his policies are meant to divide the worthy from the unworthy.

The concept of fascism does not appear prominently in Wendy Brown’s latest book, In the Ruins of Neoliberalism: The Rise of Antidemocratic Politics in the West, [1] but one gets the feeling that it is constantly on the tip of her tongue. Instead, the book engages with another concept: neoliberalism. While certainly less politically charged and contentious than the concept of fascism, in recent years it has given rise to debates characterized by oddly similar dynamics: alongside the growing awareness that the implementation of a neoliberal project has been central to the shape of the present, a chorus of voices has risen to decry this as conspiracy thinking.

Such objections are not always unreasonable: many contributions to the burgeoning literature assume a far too straightforward translation of neoliberal theory into practice. But Brown’s take is more subtle. Already in her previous book, Undoing the Demos: Neoliberalism’s Stealth Revolution, [2] she followed Foucault by emphasizing the workings of a more diffuse market ethos, referred to as “neoliberal reason.” She also followed Foucault’s argument that neoliberalism represented not a return to classic neoliberalism but was instead a more imperialist project — no longer limiting itself to the economic sphere, it aims to marketize and rationalize politics. The book depicted homo politicus as being absorbed by homo economicus, and it saw the rise of entrepreneurial subjectivity and human capital thinking as displacing democratic politics and public deliberation.

Undoing the Demos has been an extraordinarily influential book, and deservedly so. It connected two ways of seeing the world — political theory and political economy — that have long been immune to each other’s insights, and did so to great effect, offering a wide-ranging analysis of some of the most important issues plaguing contemporary polities, and pressing theoretical points into the service of a convincing analysis of the commercialization of higher education.

As tends to be the case with defining works, the book raised as many questions as it answered. In one of the more insightful reviews, Annie McClanahan argued that in an important sense neoliberalism has meant not the rise but the decline of human capital, i.e., its devaluation. As she puts it,

by characterizing neoliberalism through a specific kind of entrepreneurial subject — the subject who polishes her college application, who selects among schools for his kid, who improves her scholarly CV through obtaining national grants — we miss the possibility that neoliberalism is not the becoming-economic of the non-economic, but rather the introduction of economic exigencies into the lives of a group — white, educated, upper middle-class citizens of the developed world — formerly protected from them. [3]

This also led McClanahan to wonder if Brown might have overstated the internal coherence of neoliberal governance. The neoliberal subjects she sees do not respond to increased precarity simply by stepping up their commitment to entrepreneurial principles, but they often also react in less functional, more politicized and potentially disruptive ways.

I think McClanahan’s points raise the question: was Brown’s diagnosis of the effects of neoliberalism in terms of dedemocratization meant to be primarily a normative or a descriptive claim? Most people likely to pick up an academic book on neoliberalism will agree that there is something antidemocratic about it, but that does not by itself amount to an accurate description of the way neoliberalism operates in a society with (compromised and limited but real) democratic institutions. Indeed, Brown seemed to associate neoliberalism primarily with the dreams of technocratic governance through market metrics that Third Way politics like Clinton, Blair, and Obama entertained, rather than with the more ideologically charged mixture of authoritarian and populist impulses that marked the politics of Thatcher, Reagan, and Bush.

But that was before Trump. Brown explains that she started working on In the Ruins of Neoliberalism in response to the shock of the 2016 presidential election, and indeed Trump’s presence can be felt on every page. The book builds directly on her previous one to consider how we should understand the troubling political dynamics that have been so apparent in recent years. It begins by revising the definition of neoliberalism, noting that by focusing on the rationalizing and utilitarian thrust of neoliberalism, Undoing the Demos might have inadvertently privileged the civilized appearances of neoliberalism over its more virulent manifestations. In the Ruins of Neoliberalism therefore places more emphasis on neoliberalism’s moral aspect and the way this has permitted an organic alliance with reactionary neoconservatism and its concern to restore traditional morality. Neoliberalism is now understood as a “market-and-morals project.” [4]

Taken by itself, bringing norms back into the picture is a familiar move as a way to criticize capitalism or economics. But Brown is not looking for trite reassurances of the survival of moral sentiment or human compassion. Indeed, the picture becomes even bleaker. Neoliberalism’s objective is not simply the marketization of politics as such, with democracy as collateral damage, but it is driven by a more active animosity toward the idea of a people ruling itself: “More than submitted to an economizing semiotics, as I argued in Undoing the Demos, democracy is explicitly demonized.” [5]

But is this really the case? Is democracy no longer simply limited and compromised but actively portrayed as a bad thing? Can neoliberals brazenly declare that they act on behalf of elite interests and that the will of the people is secondary? I find it difficult to recognize that as an accurate picture of contemporary political discourse — as far as I can see, claiming to speak in the name of the people remains as imperative as ever. And is the problem with Trump really that he is not democratic? It is not an entirely implausible way of framing the problem of course, but it seems a little defensive. It’s a little like complaining about “how someone is arguing” when the real issue you have is with what they feel or do. Of course, one can see the reasons for adopting that position even if one has reservations about how democratic our actually existing democracy has been at the best of times — that is, “democracy may not exist but we’ll miss it when it’s gone,” as the title of a recent book puts it. [6] But isn’t the political problem experienced by progressives in the current moment precisely that such principled defenses of democracy have lost traction? What does it mean to stand up for democracy in a context where actually existing democracy produces Trump and where crowds are so easily provoked into spontaneous “send her back” chants? Should the Trump phenomenon not lead us to undertake a significant reconsideration of what we mean by democracy?

Of course, Brown would be the first to recognize that the situation would be worse rather than better if Trump got a larger percentage of the American population on board (and in that sense became more democratic). For Brown, democracy is something more complex than simple majority rule through representative institutions. Her understanding of democracy is rooted in a broadly republican tradition that centers on civic virtue and active citizenship as distinctive qualities of the homo politicus. This is clearly an appealing vision of politics, but I wonder if it can really work as a measure to assess the present by. After all, if neoliberalism is the main source of dedemocratization, we would presumably be looking for a more meaningful democracy in the period before the 1970s. Not only was the democratic system in place then hardly known for its civic virtue, and not only was the relative sanity of the public sphere bought at the expense of harsh racial exclusions and strict gender hierarchies; even at that very time a republican thinker like Hannah Arendt was expressing similar sentiments about the decline of politics. The problem here is the appeal to an abstract standard of democracy that has difficulty communicating with the world of actually existing democracy. In the public arena of the Trump era, all those desirable features of a rational democratic polity are systematically ridiculed, to great democratic effect.

Brown aims to keep her distance from the judgmental style of analysis that was expressed in the title of What’s the Matter with Kansas? [7] and more recently led Hillary Clinton to speak about the “basket of deplorables,” but she finds it difficult. So, when she writes about “aggrieved white midlanders” who “reflexively roar against abortion, same-sex marriage, Islam, ‘attacks on whites,’ godlessness, and intellectualism,” she isn’t willing to view this as manifesting neoliberalism’s traditional morality: “This is not ‘tradition’ or even morality speaking, but hatred of a world perceived to be wishing and washing theirs away.” [8] But of course, this leaves one wondering what the emphasis on traditional morality was meant to accomplish. I don’t think Brown is trying to file bourgeois forms of exclusion under “traditional values,” and cruder forms of racism and misogyny emanating from the lower classes under “nihilistic resentment.” But the logic of her argument seems to push in that direction.

Brown speaks of “populist rage attacking democracy,” [9] but she doesn’t thematize the paradox that this formulation hints at. The way in which the power of the people turns on itself is something that post-Marxist authors like Claude Lefort and Ernesto Laclau wrote on, but they receive short shrift in Brown’s book. That is perhaps understandable, as such authors had little to say about capital, economic policy, or neoliberalism, which are the things that Brown wants to connect to questions of political theory. But, even so, to describe the process as one of dedemocratization at the hands of an outside force is oddly old-fashioned, reminiscent of the more structuralist Marxist analyses that Brown is keen to dissociate her approach from.

Is the problem that neoliberalism has produced a “political deficit”? Or is the problem that neoliberalism has redistributed opportunities in ways that demand ample political expression and lead to the kind of unruly spectacles that we are currently witnessing, where competing sources of discontent offer endless opportunities for demagoguery? To frame the problem as the alliance of markets and traditional morals does not sufficiently recognize the depth of this well of discontent, nor the volatility and potential explosiveness of its activation. Reaction does not so much work against but through the world of actually existing democracy: it involves the continuous provocation of popular energies to legitimate authoritarian impulses that inflict violence on those at the margins.

We should turn to Brown’s treatment of Hayek here. In political theory, it has become commonplace to say that, for all Hayek’s concern with the free market, he had deep affinities with authoritarianism and was happy to rely on the strong hand of the state when it came to the enforcement and maintenance of neoliberalism. Brown avoids that argument, instead noting the difference between Hayek and Nazi political theorist Carl Schmitt: “Hayek concurs with Schmitt that sovereignty is a secularized theological concept, but, unlike Schmitt, regards sovereignty as false and dangerous because it is theological.” [10] But she takes this wholesale rejection of sovereignty as only affirming his anti-democratic stance (because it also rejects popular sovereignty). Surely, however, there is something progressive about the suspicion of authority, even when it has been put in place by a democratic public?

Here we should recognize Hayek’s own connections to the republican tradition, which are easy to miss if we concentrate on Hayek’s political writings, as Brown does. If we ignore the specific way Hayek understands economic life, it is difficult for him to appear as more than a minor ideologue offering an uninspired, warmed-over version of classic liberalism. Hayek saw himself as outlining a philosophy of order that did not just aim to cut off the king’s head but also to prevent any tyrannical schemes the people themselves might be tempted to construct — that is, to preempt any resurgence of political theology in the modern age. For him, the discovery of the market as a mechanism of secular self-regulation, without need for either divine intervention or conscious human regulation, was central here. This version of republicanism may be less romantic, but it nonetheless contains a compelling political fantasy that neoliberalism has deployed to great effect: it imagines the market as a guarantor of political neutrality, a source of institutional protection against the entanglement of wealth and authority.

We won’t be able to understand the making of neoliberal society unless we recognize the ethical charge generated by this neoliberal-republican image of market order. Yet it is common for critical perspectives on contemporary politics to underestimate its emotional appeal and popular traction. And in this way, they often end up feeding the logic at work, which systematically resists progressive arguments about the pernicious effects of real-world markets and attempts to fact-check the record of neoliberalism. Every piece of evidence demonstrating that the world doesn’t resemble a free market comes to serve as yet so much more evidence of the depth of corruption and therefore only serves to reinforce the need to “drain the swamp.” Of course, Trump-style theatrics often appear far removed from any actual economic issues, but that is precisely the point. Trump’s key strength is to reject responsibility for any existing problems, and he has fully committed himself to the business of blaming minorities and the progressives that coddle them. The result is a sort of centrifugal dynamic of hatred that aims to suck in any and all expressions of social discontent. To progressives this project seems highly uncivilized, but to the many Americans who support Trump this uncompromising stance seems like a highly principled unconditional refusal to accommodate himself to existing political realities.

In other words, the market, imagined as a decentralized coordination mechanism that ensures that people get what they deserve and works to prevent illegitimate concentrations of power, induces a certain fanaticism that breaks out of the bounds of civilized public debate. Unable to see its own limitations, neoliberal reason can only understand the failure of its core fantasy as the result of corruption by an external force: when the market fails to produce both freedom and social order, there must be a conspiracy at work. This is the distinctive way in which a mentality that takes itself to be rational and secular (answering to no higher authority than the welfare of the people itself) becomes irrational and tends toward conspiracy thinking and scapegoating. Moreover, it is characterized by a certain relentlessness because it recognizes no external limitations as legitimate. If we fail to note the ethical charge of the image of social order around which this unsavory logic revolves, our analysis of the present will only ever get so far.

The logic at work here motivates and legitimates the exclusions and oppressions that permit the partial realization of the republican imaginary. Emotional investment in the idea of the modern economy as a mechanism that lifts all boats has always been deeply bound up with the possibility of limiting its universality, of excluding parts of the population from its benefits in more or less stable ways. Capitalist regimes of relative equality — whether among colonial settlers or unionized workers — function on the basis of an elaborate systems of racial and gendered hierarchy, the organization of society around biopolitical distinctions that rank forms of life. This is not a precapitalist or traditional leftover, but the distinctive product of modern capitalism.

These points, echoing the notion of fascism as a product of the dialectics of modernity, aren’t perhaps all that far from the argument developed in In the Ruins of Neoliberalism. The book’s pessimism at times channels the spirit of Adorno: it offers no anticipation of redemption, no announcement of a countermovement, no promise of a better future — all highly refreshing in a public sphere that puts such a premium on the profession of optimism. But even though Brown is not tempted to issue the promises of restoration that typically accompany diagnoses of decline, that does not by itself dissociate her intervention from the logic at work. The implicit appeal to a more democratic past is, at best, politically disorienting. The way the book holds up an ideal notion of democracy unintentionally serves to maintain a certain fantasy about community, one that abstracts from the exclusions and hierarchies that most readily available communal identities are built on. [11] In previous work, Brown herself has offered penetrating critiques of contemporary community and its boundaries, [12] so it is no surprise that she keeps her distance from the implications of this political fantasy — but that is just not the same as critically engaging or deconstructing it.

Central to neoliberalism’s real-world success and resilience is the psychopolitics that it has fostered. Brown recognizes this, but her concern to develop an accurate social-scientific definition of neoliberalism means that she becomes focused on the extent to which social reality corresponds to neoliberal ideology — and this is a significant hindrance when it comes to fully plumbing the depths of neoliberalism’s emotional and psychological logics. However we define neoliberalism, we will always find that it has managed to live up to its own image only for the briefest of moments (perhaps the 1990s, if we focus on Clinton’s infusion of public management with market metrics and overlook the mass incarceration, or the Bush administration before 9/11, if we take at face value what they meant by traditional morality). Being too troubled by this is how social scientists are currently filling entire books and journals questioning whether neoliberalism is even a real thing. Brown’s willingness to expand or revise her definition of neoliberalism is welcome, but it is not a substitute for the kind of analysis that locates the power of neoliberalism within the tension between ideology and practice, fantasy and reality.

The last chapters of the book seem to be driven by an awareness of this: they offer a powerful account of the strange affinities and paradoxical psychological dynamics fostered in the contemporary political climate. Revisiting themes from her earlier work, Brown advances a compelling analysis of how nihilism and resentment have mixed to supercharge logics of exclusion in the era of Trump. But here too the definitional issue rears its head. Even on the expanded understanding of neoliberalism as rationalization plus traditional morals, Trump is seen to be breaking the neoliberal mold: “[W]here nihilism intersects neoliberalism, freedom is torn out of the habitus in traditional values by which it was to be contained and disciplined in the original neoliberal formation.” [13] And so Brown ends up seeing the rise of Trump as a symptom of the decline of neoliberalism, the growing difficulty of holding society together on the basis of a market ethos and traditional morals alone, in the absence of a coherent democratic political vision or a democratic public sphere.

Brown’s analysis of the Trump phenomenon makes highly effective use of Marcuse’s notion of “repressive desublimation,” which captures the way subjective expressions that strain against existing social norms and therefore feel authentic and liberating can in fact work to deepen the existing systems of power and its oppressions. Trump is certainly the richest manifestation of repressive desublimation, but Marcuse’s notion can also be easily read as a critique of Hayek’s philosophy of liberalism, which imagined individuals letting loose and unintentionally giving rise to an order that would not be experienced as oppressive by anyone in particular, where nobody’s freedom comes at the expense of anyone else’s. If we had to single out one quality as defining neoliberalism, it might be its ability to catalyze and deploy these psychological dynamics, reflecting our affinities with oppression back to us as opportunities for achieving more authentic ways of living and a social order beyond domination. And this also means that the mechanisms at work are probably less fragile than Brown assumes. For the political deployment of desublimation is self-reinforcing and sets up what I think of as the “Hillbilly Elegy trap” [14]: even the most glaring spotlights on the dysfunctions and prejudices of the white working class somehow work to reinforce its status as the moral backbone of the nation.

This does not mean that Trump is a neoliberal in any doctrinal sense. His political style signals an important shift. If the willingness of elites to provoke forces for which they do not have a user manual has been on the rise for several decades now, until recently they still refrained from fully capitalizing on the possibilities that such popular energies held. Trump’s abandonment of such reservations — his determination to stay the course and constantly double down on his flirtations with fascism — marks a significant change. But this shift from “dog-whistle politics” to active desublimation is better explored as a resurgence of fascism than as a decline of something else. The notion that neoliberalism is now a spent force is only plausible if we took the label too literally in the first place — if we viewed it as a discrete historical phase rather than as a powerful renewal of the fantasy of the market.

To frame the problem of emergent fascism as a conflict between neoliberalism and democracy feels too defensive, an attempt to keep the problem manageable at the level of theory even as it feels increasingly less so in the real world. In that sense, it’s almost as if In the Ruins of Neoliberalism is too purposely driven by the political urgency of the moment. That undercuts what makes Brown such a compelling political thinker — her unique ability to resist the terms in which political problematics present themselves and to reframe them in a way that opens up new lines of sight. In this book, that ability is richly on display in her analysis of the paradoxical identity politics fostered by the rise of desublimation as a political technique — which can be read as an elaboration of her profound earlier insights into the logic of “wounded attachments.” [15] But the sheer fecundity of those pages has the effect of reinforcing the sense that we are dealing with dynamic combinations of psychopolitical forces on which the existing categories of political theory and political economy just do not provide all that much grip. We moderns can come to view our most banal, unexamined sentiments as signposts on the road to redemption. A politically effective understanding of this paradoxical logic will elude any perspective that assesses actually existing democracy against an image of reasoned public debate. And we don’t have to imagine that past fascists were rational, competent creatures in order to think that this emotional logic may well be the key driving force behind the resurgence of fascism in neoliberal times.

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September 22, 2019   

Martijn Konings works in the Department of Political Economy at the University of Sydney. His latest book is Capital and Time: For a New Critique of Neoliberal Reason (Stanford University Press 2018).

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[1] Columbia University Press, 2019.

[2] Zone Books, 2015.

[3] “Becoming Non-Economic: Human Capital Theory and Wendy Brown’s Undoing the Demos”, Theory & Event, 20(2), p. 512.

[4] In the Ruins of Neoliberalism, pp. 15-6.

[5] In the Ruins of Neoliberalism, p. 86.

[6] Astra Taylor, Democracy May Not Exist but We’ll Miss It When It’s Gone, Metropolitan Books, 2019.

[7] Thomas Frank, What’s the Matter with Kansas? How Conservatives Won the Heart of America, Holt, 2004.

[8] In the Ruins of Neoliberalism, p. 121.

[9] In the Ruins of Neoliberalism, p. 87.

[10] In the Ruins of Neoliberalism, pp. 70.

[11] Miranda Johnson, Against the Romance of Community, University of Minnesota Press, 2002.

[12] Walled States, Waning Sovereignty, Zone books, 2010.

[13] In the Ruins of Neoliberalism, pp. 171.

[14] After J.D. Vance, Hillbilly Elegy: A Memoir of a Family and Culture in Crisis, Harper, 2016.

[15] States of Injury: Power and Freedom in Late Modernity, Princeton University Press, 1995.