Court-bashing Bedfellows

Blade Nzimande, South Africa’s Minister of Higher Education, and Senator Ted Cruz, the fire-breathing Texas Republican who is one of the angry mob competing for his party’s presidential nomination, have something in common. It is more than a propensity to grandstand.

The General Secretary of the South African Communist Party and the Canadian-born son of an anti-Castro Cuban could hardly be farther apart ideologically but they both are in a remarkably similar froth about judges with whom they do not agree.

Dr Nzimande, in his 14 823 word political report to last week’s SACP special congress, charged that “some in the judiciary” were part of an “anti-majoritarian pseudo-liberal offensive against the democratically elected executive and parliament”.

He singled out Deputy Chief Justice Dikgang Moseneke. It seems a talk the respected jurist gave in Washington in 2012 remains stuck in the Zumacratic craw on the theory it “advanc(ed) an agenda that neither derives from our constitution or the political settlement reached in the early 1990’s.”

That, if true, would be distressing news to those who heard and were heartened by the lecture. Saying Justice Moseneke got it wrong is to risk intensifying the resignation already felt here about SA’s trajectory under its present management. And no, he is not in the pay of the CIA.

What’s eating Senator Cruz, meanwhile, is last month’s US Supreme Court decision to preserve Obamacare.

Five of the Court’s nine Justices were appointed by Republican presidents. Two, including Chief Justice John Roberts, joined the four appointed by Democrats, to save President Barack Obama’s signature health care reform from a Republican-sponsored ruse to blow it up. That was not supposed to happen.

“They are lawless,” Sen. Cruz howled on the Senate floor. “These Justices are not behaving as umpires calling balls and strikes (a baseball metaphor). They have joined a team…If (they) want to become legislators, I invite them to resign and run for office. That is the appropriate place to write law — on this floor, not from that courtroom.”

Dr Nzimande thinks “some” in SA’s judiciary are on Team DA. But heaven forfend that partisanship should get the better of him. In the current issue of ANC Today he denies he means any harm to judicial independence.

That is just as well because judicial independence is to South Africa’s battered brand what the dome of St Paul’s Cathedral was to British morale when the Luftwaffe was blitzing London. A symbol of hope.

Dr Nzimande says he is only trying to stimulate debate. Let powers remain separated! So long as they are all aligned with the will of the majority as defined by the ruling alliance.

Sen. Cruz, his rage redoubled by the Supremes’ blessing of same sex marriage, wants more than a conversation. He proposes a constitutional amendment to require that the Nine submit to a national plebiscite every eight years. Those receiving fewer than half the votes in more than half the 50 states would be ostracised from the Court.

A Harvard-trained lawyer who clerked (wrote opinions) for the late Chief Justice William Rehnquist, the Senator is no fool. He must know his proposal is going nowhere. It’s populist play-acting to get coverage on Rupert Murdoch’s Fox News (the ANN7 of the Republican right) and in the relevant social media echo chambers.

Aficionados of Tim Burton’s original Batman movie will be familiar with the epithet “whack job” applied to Jack Nicholson’s Joker. If the whack job Donald Trump can top the opinion polls for the Republican nomination, as he was this week, chances are fair there’s a wave of populist Republican id rolling in for Sen. Cruz to catch as well, once Trump has had his moment.

Happily, it won’t be a wave that will take the Senator anywhere near the White House. American politicians have been complaining about “judicial oligarchy” ever since 1803, when the Supreme Court gave itself the power of judicial review in Marbury vs. Madison. “A very dangerous doctrine indeed”, thought Thomas Jefferson. But those who have tried to undo it, both progressives and conservatives, have never had much success.

Theodore Roosevelt, running for president as a third party candidate in 1912, proposed allowing citizens to overturn court decisions by referenda. He lost. When the Supreme Court blocked much of his New Deal legislation, Franklin Roosevelt (as Dr Nzimande notes ANC Today) asked Congress to let him pack the court with extra members who would back his agenda. For all his powers of persuasion, he was unable to generate a popular groundswell to support this idea. It languished.

The world will be watching to see if Dr Nzimande has any more success in SA. Nervously.

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