Earlier this week Brett Kavanaugh assumed his duties as judge of the United States supreme court. Judicial appointments, including to the top court of the world’s pre-eminent country, are of little global diplomatic interest nor do they attract sustained international attention. Kavanaugh’s nomination and confirmation process did so though in great measure. This was partly because of the light it shed on the deep divisions in American society and polity; this has international repercussions. It was also because the US supreme court not only makes great impact on the national life of its own country but it also influences judicial thinking on political and social issues world-wide. With Kavanaugh’s appointment the court’s balance is expected to significantly shift towards more conservative approaches on public issues.
In its role as the interpreter of the US constitution the supreme court decides on the distribution of powers and functions between the US federal government and the states. These issues are largely unique to the US but as many constitutions have drawn inspiration from that of the US the court’s decisions are studied in federal democratic countries. Of diplomatic significance are its decisions on the President’s domestic and foreign policies. President Trump’s order to curtail immigration from some Muslim countries is germane in this context. As a candidate Trump had said that he would ban Muslims from entering the US. Soon after becoming President, Trump virtually banned the entry of nationals from seven countries which were all Muslim majority states. He did so on national security grounds. His order was challenged in the federal courts. They virtually struck it down holding that it showed a religious bias which was unconstitutional. Trump morphed the original order and yet it did not clear the federal courts. However, the supreme court in a 5-4 ruling upheld his immigration policy in June this year. The majority viewed the order as a legitimate exercise of Presidential powers for national security and did not find any religious bias. The minority view found religious bias and questioned the invoking of national security considerations. Obviously, here the court’s view has global diplomatic implications.
Trump’s policy validated by the court shows the US’s rightward shift. This marks a departure from US’s social, political and judicial evolution since the second world war and its global advocacy of universal liberal values. The court was in the vanguard of this change. It did away with the pernicious doctrine of ‘separate but equal’ which allowed America’s southern states to enforce segregation in public spaces and educational institutions. It provided the legal rails which permitted the civil rights movement led by Martin Luther King. These decisions had international repercussions. It took a generation and sustained international effort to move the US to give up its indirect support for apartheid regime in South Africa but it can be plausibly argued that but for changes prodded and upheld by the court US public attitudes towards South Africa may not have changed. Of course, the South African issue was enmeshed with cold war politics too. The court also cleared the way for expanding minority and individual rights. It upheld the challenge to orthodoxies regarding gender and sexual orientation. These decisions reflected changing mores in the western world which promoted these changes as models for the rest of the world.
During the cold war the west claimed the moral high ground for its push for fundamental and universal human freedoms in free and open societies and accountable polities. Now the liberal tide is ebbing, its impulse spent. Security concerns are limiting freedoms, restricting movements of peoples as well as drawing trade barriers. Ironically at a time when technological changes over the past three decades and beginning of the fourth industrial revolution underline the logic of globalisation the opposite road is being taken by many advanced countries led by the US. The demand of universal measures to even meet the challenge of climate change is being disputed by the principal polluter, US. It is unwilling to accept its historical responsibility in the warming of the planet. Along with other advanced countries it has reneged on all commitments made since 1992.
Repercussions of the move towards conservatism are being felt in other critical areas too. It was a basic liberal tenet that faith and governance should be in separate compartments. Now faith is creeping in governance in many countries. The revival of the influence of the Church in Russia and some countries concerns for the same faith minorities in other states point in this direction. In the past such concerns were on the basis of ethnic or linguistic affinity but now, more and more, on faith. The communist party ruled China is going the other way. Its assault on the faith and practices of some of its minorities cannot be viewed as progressive. It is now taking on ‘pan-halal tendency. Keeping faith away from governance cannot imply curbs on minority faiths and cultures.
Western liberalism also promoted market economies. This was not so in countries like India which were committed to civil liberties and the principle of equitable distribution of wealth and income. The global move towards conservatism and market-based economies is leading to the growing concentration of wealth in few hands. This is socially unhealthy all over but particularly inappropriate in countries where hundreds of millions live in despair and want.
Cold conservative global winds can only lead to unsettled and turbulent times.