Property Rules

On the Supreme Court and the cordon sanitaire against the left

Today, I want to address two questions, one very timely and one not as much so, which may not appear to have much to do with one another. The first is on the status of the United States Supreme Court as a kind of third rail of American politics. Seemingly all political actors in the U.S. hate the Court and regard it as illegitimate (albeit at different times and for different reasons), but defying or even seriously reforming it appears unthinkable. Just this week, they struck down Trump’s signature domestic policy tool, effectively unravelling a year’s worth of work on the various farcical “deals” he has extracted from various nations and handing him a major personal humiliation—and he took it. He complained in a way that previous presidents never would, he found a legal basis to reinstate as many of the tariffs as possible, but at the end of the day even Donald Trump couldn’t find it in himself to simply tell the Supreme Court to go fuck themselves.

We could tell a similar story about the Supreme Court’s decision during the Biden administration to arbitrarily reduce half of the population to chattel—or more precisely, leave it to the states whether to reduce half of their populations to chattel. Aside from the inherent sickening injustice of the ruling, the right to an abortion has been the single most consistent Democratic priority for a generation. And what happened in response was… nothing. Biden appointed a committee to study Court reform that went nowhere, and in his last days in office he mused that maybe the Equal Rights Amendment was somehow secretly ratified, but he and his Congressional colleagues did nothing. Supreme Court reform was not even a major topic of debate during the presidential campaign, as Democrats steeled themselves to simply win every election for the next 50 years and hopefully restore women’s basic human rights that way. Indeed, even when Mitch McConnell brazenly arrogated to himself the power to steal a Supreme Court appointment from Obama, he chose to go through the motions of the regular procedure and simply take it rather than counter McConnell’s unprecedented move with an unprecedented response. Apparently doing anything that might cast doubt on the legitimacy of a Supreme Court appointment was viewed as more dangerous than whatever a hypothetical Trump appointee might do.

So that’s my first question: why do all other political actors in the United States defer to this unpopular, unrepresentative, nakedly politicized, illegitimate institution?

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My second, less topical question is: why is any political challenge from the left regarded as definitionally more dangerous than anything that could come from the right? The most recent, very striking example of this was Macron’s disastrous gambit of calling a snap election. At this point, the French left stepped up, set aside their divisions and their differences with Macron’s party, maintained a cordon sanitaire against the Rassemblement Nationale, and in the process won a significant plurality in parliament. But the notion that the left could take the lead in a unified coalition was regarded as simply unthinkable, even after the controversial leftist leader Mélenchon made a commitment not to seek any role in the government. Rather than concede even an inch to the leftist parties that bailed him out of an objectively foolish and destructive decision, Macron churned through a succession of impotent centrist prime ministers and effectively empowered the RN in the process. Despite the conceit that the RN was the ultimate evil that must be stopped at all cost, conceding any power to the left was apparently a step too far. Macron would do anything for love, but he won’t do that.

We see similar dynamics everywhere. In the post-Brexit UK, the Labour parliamentary policy clearly preferred to lose to Brexiteer Boris Johnson—another presumed Ultimate Enemy—rather than win with their duly elected leftist leader Jeremy Corbyn. In the US, Hillary Clinton, facing a similar Existential Threat in the person of Donald Trump, chose to indulge fantasies of winning over suburban Republicans (who for a generation had ingested hatred of “Hitlery” with their mother’s milk) rather than attempt to appeal to the dreaded Bernie Bros who dared to imagine that they deserved consideration as part of the Democratic coalition. Again and again, the rise of the populist right has been enabled by ostensible centrists who, when push comes to shove, would clearly rather hand power over to the figures they paint as the Great Satan than to anyone to their left.

So that’s my second question: why is conceding any power to the left unthinkable for the mainstream political elite, even as a way to counterbalance the threat of the populist right?

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I propose that there is one answer to these seemingly disparate questions: the foundational role of private property rights under neoliberalism. That is the one true human right with any heft or enforceability, the only one that is taken seriously when push comes to shove. Even the Ukraine War, presented as an existential threat to Europe, is not a strong enough shove to make the European Union feel comfortable abrogating private property rights—as seen in the reticence to seize frozen Russian assets outright to fund Ukraine.

From this perspective, the unspoken cordon sanitaire against the left makes perfect sense. It’s not that anyone actually thinks Jeremy Corbyn would have instituted a Soviet-style command economy and sent Tony Blair and everyone to his right to the Gulag. While the Communist regimes of the 20th century were brutal and often disastrous, there are plenty of examples of socialist reformers playing positive roles in postwar Western governments—often creating some of the most beloved programs and institutions in their respective nations’ histories. It’s the latter that’s the threat. Any move to re-legitimize public goods will not only require greater public resources, but create spaces that are not controlled by private power.

Allowing the left to try to implement its policies, even if they fail, would break the spell of “there is no alternative,” which would undermine the brittle legitimacy of a system centered on the ever greater concentration of private power in the form of private capital. Along similar lines, we can see why even a very modest wealth tax is greeted with such fear and revulsion. While taxing certain activities is inevitable, allowing the government to take away private wealth simply because the individual has too much of it is a body blow to the sanctity of private property, rendering all wealth and property conditional.

By contrast, the populist right does not question the principle of private property—it doubles down on it by overlaying it with more intangible forms of “property” such as national identity, racial hierarchy, and gender privilege. It aims in principle to make the world more hierarchical and to make privilege more unassailable. While the global ruling class would obviously prefer that Trump not, for example, upend the entire international trading system on a whim, they are willing to tolerate it rather than face a more fundamental challenge to the power of capital.

In the case of the Supreme Court, the relevance may seem less obvious, but that’s because people ignore the concrete role of the Supreme Court. It’s conventional wisdom that the judicial branch is the weakest and most distant from the people, but that’s not true. It’s actually the branch most people have the most contact with, in the form of the legal system. The Supreme Court isn’t just the committee to decide who gets to have human rights, they are the pinnacle of the U.S. legal system—the vast majority of whose activities are centered on enforcing contractual obligations and determining property rights. Indeed, given the U.S.’s role in global trade (at least for now), the U.S. court system has huge influence all over the world.

The danger of seriously changing the role or composition of the Supreme Court—much less simply ignoring its rulings—is that it potentially calls into question the whole legal structure by which the most important global actors have chosen to intermediate their conflicts over contracts and property rights. If the cost is that some poor girl in Alabama is left to die after being denied a medically necessary abortion, that’s a shame, but those types of rulings are a necessary concession to political reality. The important thing is that when push comes to shove, regardless of its partisan leanings, the Court can be relied upon to make responsible, business-friendly rulings—ones that affirm contractual and property rights, as in the tariff decision, which came down to the principle that the president cannot arbitrarily levy taxes at will.

At the end of the day, this post may be a different way of saying what Matt Ellis said shortly after the election (in a post that was apparently deleted?) and then after the market’s rebuke of Trump’s full “Liberation Day” tariffs: Marx is right, the capitalists really do run the world. That means that, on the positive side, Trump is in the last analysis restrained by the law. But on the negative side, the law by which he is constrained is in the service of the power that thwarts all of humanity’s legitimate demands and desires. So…. yeah, not great.