Ruth Bader Ginsberg: Societal Change as the Mission of the U.S. Supreme Court

By chance, I watched RBG (2018), a documentary on Ruth Bader Ginsberg, a U.S. Supreme Court justice, on the day she died in 2020. Being just a month and a half before the U.S. presidential election, the sudden opening immediately became political. This is of course to be expected, given that the sitting U.S. president nominates candidates and the U.S. Senate confirms them. The role of political ideology on the bench and thus in court decisions, however, is considerably more controversial because the justices are tasked with interpreting the law rather than stitching their own ideologies into law as a means of changing society. The documentary demonstrates that changing society through law was precisely Ginsberg’s objective.

The full essay is at "RBG."

On the American Military-Industrial Complex

A democratic republic affords many avenues for organized private interests to influence public policy. The fact that such interests are organized is enough to outweigh the influenced of an organized constituency. Add in the money available to organized interests and the imbalance is exaggerated. The military industrial complex—the “informal” alliance between a military and private defense-contractors is a case in point in the United States.

At the end of his second term in 1961, President Eisenhower warned the American people of the abuses of power that can come from the military’s alliance with its defense-contractors. The influence of the alliance, in other words, could come to trump the influence of the electorate and what is in the best interests of the United States in the world. After World War II, a permanent armaments industry emerged; the president was concerned that its influence would grow too much. He said, “We must guard against the acquisition of unwarranted influence. . . . The potential for the disastrous rise of misplaced power exists and will persist.”[1] Once such power exists, it can protect itself even from threats from the electorate. Such protection can be explicit, as in efforts to keep the U.S. in a war, such as those in Afghanistan and Iraq, which were quite long ones.

Roughly sixty years after Eisenhower’s farewell speech, President Trump publicly claimed that the U.S. military seeks to do the bidding of the defense contractors.[2] Such an open admission was itself startling, for the president was telling the electorate that private companies effectively control defense policy. The interests of such companies are private, and thus partial, rather than being identical to the public good, which a republic’s government is supposed to enact and protect. Where a few strong interests, whether that of the financial sector or defense contractors, can control elected representatives, a democracy can actually be a mere gloss for the books. A republic is thus vulnerable.

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1. “President Eisenhower Warns of Military-Industrial Complex,” History.com, November 16, 2009.
2. Maeve Reston, “Trump Presses On after Rough Week with His Presidential Image in Shambles,” CNN.com, September 12, 2020.

Britain's Obsession with Sovereignty Threatens Trade Treaty with the E.U.

Months after Britain seceded from the E.U., the government of the former state went rogue in intending to pass a law that would unilaterally change, and thus violate, the terms of the post-secession trading agreement between the UK and its former union. The bill proposed no new checks on goods going from the Northern Ireland region to the other regions of the UK. Whereas the British prime minister was claiming that the full sovereignty of the former state meant that Parliament could unilaterally change the terms of a treaty, the European Commission was saying, in effect, that an agreement is an agreement. I contend that the Commission was correct. Moreover, even before the UK seceded from the European Union, an obsession on sovereignty (then, states' rights) rendered Britain vulnerable to failing to grasp the costs.  

I submit that a treaty is no longer valid if one party uses its governmental sovereignty to unilaterally alter the terms. The E.U. could have replied that if the former state passes its bill, then the trading treaty would be null and void. The UK wanted a trade treaty, so that government would have to start from nothing in negotiating a new one should that government violate the one already agreed to prior to the secession. Fortunately, the secession itself was not contingent on the post-secession trading treaty going into effect, for Britain's insistence on its full sovereignty even as the state was semi-sovereign as a state in the E.U. was problematic. 

While the UK government's insistence on its full governmental sovereignty was correct at the time the proposed bill was proposed in 2020 (i.e., after secession), the claim of full sovereign of any E.U. state, including the UK before it seceded, would be false. The rational flaw that resides in the contention that the trade treaty would still hold even if one of the parties unilaterally changes the terms is also in the contention that a state of a union can unilaterally change the terms of federal law, as South Carolina had done in the U.S. in the early 1830's. 

Put another way, whereas the British government was correct that a trading agreement going into effect after secession counts as a treaty, which a government's legislature can change because it is sovereign, to make the same claim regarding federal law in a political union would not hold. So when David Cameron claimed when Britain was an E.U. state that the E.U. was just another network of (sovereign) countries to which Britain happened to belong, he was wrong in implying that the British Parliament held full sovereignty. He was conveniently ignoring the fact that the states had delegated some sovereignty to the E.U., and that laws passed on the federal level were not treaties relative to the sovereignty retained by the state governments. 

Even though Britain was no longer a state of the E.U. in 2020 when the Parliament was considering a bill to unilaterally change what was in fact a treaty, it seems that the need to continue to emphasize sovereignty was a bit overdrawn, and not in the former state's economic interest. For just as one party to a treaty can change it unilaterally, the other party can walk away, tearing up the treaty and legitimately claim that no agreement exists.