It seems like every few months brings news of another defeat for the UK government in the courts. And there may well be more to come – the latest policy in the sights of lawyers and activists is the plan to process certain asylum seekers who’ve arrived on Britain’s shores in Rwanda in east Africa.
The policy was met with justified outrage from progressives and the left. Specialists also predicted that it would run afoul of international law and human rights legislation. But what if this was part of the plan all along? The Times columnist Clare Foges, writing under the headline “Rwanda won’t work: but it will for Boris Johnson”, wondered if the real purpose of the plan was not to actually reduce perilous journeys across the Channel, as the government claimed, but to draw progressives into extended court battles and lawsuits. This would force them to act as an explicit blockade on post-Brexit migration policies, frustrating the “people’s will” ratified by the 2019 election, and thereby galvanising Tory activists and potential voters.
This poses an uncomfortable question for the left: what if its increasing embrace of the justice system is not just a sign of political weakness, but rather a gift to the right?
Johnson is hardly alone with this tactic. In Brazil, Jair Bolsonaro’s term as president has been marked by a recognisable pattern of improbable initiatives followed by protracted leftwing resistance in courts. In Belgium, Flemish nationalists such as Theo Francken, the former secretary of state for asylum, have repeatedly attacked judges who have thwarted plans to deport asylum seekers. By forcing opponents to lawyer up instead of building movements and pursuing state power, the right can pose as the defenders of an assailed, disfranchised majority.
This leftwing embracing of the courts makes sense on one level. In the face of rightwing attempts to restrict basic human rights, the justice system has some of the more powerful tools. Immigration policy is not unique in this regard. Over the past decade, green activists have begun pressing claims against a variety of state actors to hold them accountable for climate inaction. Given the issue’s urgency, it is understandable that ecologists would examine a wide repertoire of tactics.
Context matters, however. Historically, courts were usually the left’s last resort. They offered a pivot when all other routes had been exhausted or political circumstances were simply too hostile. The left relied on a densely organised civil society of unions, parties and councils which could fight opponents on their own terrain. These parties and unions could run in elections, strike or rewrite constitutions. Yet they were always sceptical of the idea that progress could be achieved through the courts alone, or that judges were the most reliable guardians of popular power.
In the past 40 years, as these bastions of worker power have atrophied or died out, the left has become isolated and weak, populated by a small caste of professionals – many of them lawyers and academics – who only have a tenuous connection to an organised constituency.
In this sense, the embrace of judicial power is itself the expression of political weakness. In the 1990s, the “third democratic wave” elevated the ideal of independent courts, together with market economics, to a sacred criterion for membership in the global democratic community. In the 2010s, however, disillusionment with courts became endemic across young and old democracies, from the Polish government’s decision to handpick judges to the controversies around the German constitutional court and its queasiness about looser EU budgetary rules.
The US provides a helpful example of the drawbacks with trying to secure progressive gains through the courts. The country is somewhat unique in that its abortion rights were achieved through supreme court action rather than directly elected majorities. In several European countries, parties that supported abortion rights had to run in elections across the 1970s and 1980s, thereby facing a direct, democratic test from voters. Once these parties won office, it was easier to get anti-abortion activists to acquiesce to the new regime. There had been a fair contest, and the losers had to accept the result. In the US, by contrast, conservatives repeatedly felt as if abortion rights were imposed by judicial coup. This encouraged political backlash, and allowed anti-abortion activists to claim a fresh democratic mandate.
This does not imply that conservatives are strangers to the opportunistic usage of courts. Many of the authoritarian threats of the 2010s came from ideologically driven judges. The right in Latin American is especially keen on “lawfare”.
A variety of trends may well decrease the vote share of rightwing parties in the near and distant future. In Britain, persistently low wages and a cost of living crisis do not make for great electoral prospects. Faced with these demographic and economic trends, the Conservative party (and other rightwing outfits) could increasingly prefer its opponents to fight them on the terrain of courts and judges. This is an easy option: it allows rightwing parties to pose as the representatives of a frustrated majority, while camouflaging their own anti-democratic plans – to gerrymander voting districts, for instance, or even to introduce tests at the voting booth.
Scepticism about judicial power should not make progressives cynical about what can be achieved through the law. There are important battles that should be fought in courts. Yet if progressives are serious about offering a real political alternative, they will be better off focusing on the (re)building of durable institutions, rather than appealing to the moral conscience of high judges. Courts will not always be their best friend – sometimes, they might even be an enemy.