Equality by lot

Glenn Greenwald is a former constitutional and civil rights lawyer and a prominent independent journalist, most famous for breaking the Snowden revelations about U.S. government surveillance.

In a recent segment on his show, Greenwald takes U.S. vice president J.D. Vance to task for claiming that U.S. supreme court is subverting the “democratic” will of the U.S. voters to deport all illegal residents from the country (as expressed in the election of Donald Trump to president) by putting up legal barriers to some deportation efforts implemented by the Trump administration. Greenwald rightly points out that Vance’s claim is obviously manipulative. The U.S. system has from the outset, deliberately and explicitly, set up various restrictions on what elected officials can do, and in particular legal challenges to executive policies have always been used, including, of course, by Republicans, to block popular policies.

When presented this way, all of this is the standard grist for the liberal mill. Politicians pretend to be concerned about the anti-majoritarian nature of mechanisms that they like to utilize in their favor when it suits them. “We”, good liberals who stand for civil rights and the rule of law, should be grateful that such mechanisms exist whether or not we support deporting illegal residents. Such mechanisms make sure that government is not despotic and that majorities do not oppress minorities. Specifically, a proper procedure for deporting illegal residents is already in place and is not in any way obstructed by the courts. We should all insist that this procedure is followed whether or not a majority of the voters wish to and thus it is good that the U.S. has anti-majoritarian procedures in place.
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The recent judgment against Marine Le Pen in France has been compared to the decision against Georgescu in Romania. In each case a prominent “extreme right wing” candidate in a European country has been barred from participating in an election campaign in which they had a fair chance of winning. In fact, however, Le Pen’s case is much more similar to that of Turkey’s Imamoglu than to Georgescu’s.

First, unlike Georgescu, whose electoral win was retroactively annulled and who was barred from an election that is merely weeks away, Le Pen’s and Imamoglu’s electoral potential in elections that are years away is speculative. Second, and more importantly, while Georgescu was disqualified on openly political grounds, Le Pen and Imamoglu are being disqualified due to being convicted for illegal actions (or may be convicted and disqualified in the case of Imamoglu who has been arrested but not convicted or officially disqualified yet, I believe). The merits of the cases against Le Pen and Imamoglu may (or may not) be very different, but unlike the case of Georgescu, formally these cases are of the same type in the sense that they are both matters of legal determination rather than of setting political limits on candidates.
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