The Kashmir Monitor
By William Milam
German theologian Martin Niemoller was at first an enabler of the Nazis, but turned against them after a couple of years of experience with dedicated totalitarians and seeing his friends and allies slowly disappear. And he then also disappeared, spending the next seven years in Nazi concentration camps and narrowly escaping execution at the end of the war. At some point, while either in Dachau and Sachsenhausen concentration camps, he wrote of the disappeared and of his regret for not taking a stand sooner. “First they came for the Socialists, and I did not speak out because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out because I was not a Trade Unionist. Then they came for the Jews, and I did not speak out because I was not a Jew. Then they came for me, and there was no one left to speak for me.”
I think of this often these days, as once again, the world seems full of enablers. From the Supreme Court and the Congress of the United States to the Government institutions and elites of countries around the world, those with the power and ability to resist demagogic authoritarian leaders and the secret police that are carrying out their repressive instructions, are instead enabling them. I suspect that when inclusive liberal democracy disappears, most will have the same regrets, and many, in fact, will also have disappeared.
I had intended this article to grapple with the worldwide problem of disappearances. The quote and reference to Pastor Niemoller in the first paragraph was to illustrate that disappearances seem to be the mark of countries on their way to an authoritarian future if not there already. One finds disappearances in illiberal democracies, that is, those with some of the trappings of democracy, like elections, but not the real thing. Bangladesh is a good example of an illiberal democracy on the march toward authoritarianism. And in Bangladesh, disappearances are an almost everyday thing. Disappearances run through South Asia, and those who don’t speak out against them are also enablers. The other end of the spectrum are totalitarian states, though none exist anymore, where disappearances were not limited to individuals, but carried out against entire ethnic or religious populations. I believe that the first disappearance that is common to this spectrum of countries is the rule of law which has been weakened, rejected, attenuated, or withered away. And I would argue that an important factor in the attenuation of the rule of law is that elites stop, for some reason, believing in it and stop standing up for it. They become enablers of those who would reorganise society and take over the dispensation of economic rents.
This attenuation has to start with the institutions and the elites which should be the fiercest defenders of the rule of law, but become in fact the enablers of those who want to scrap it. And I fear that may be happening in the US, so that is what the rest of this article is about. In the last few weeks, the Republican-appointed majority of the US Supreme Court dictated three decisions that were clear on one thing: the court will not stand up against Trumpian/Republican (the terms are now interchangeable) policies that are aimed at alleviating white nationalist fears of a diversifying society, the core tenet of Trumpism. These conservative judges would seem to want to enable the Trumpians to implement their vision. This enabling came in decisions on a cases involving voting rights, gerrymandering, and on the high profile third version of the Trump Administration’s ban on Muslim immigrants from seven countries (the first two versions having been rejected by lower Federal Courts).
All three cases involved, in one way or another, equal treatment of minorities, which of course is the central issue running through the culture war that now dominates American politics—between the Republican and Democratic parties (which political analyst Ronald Brownstein calls the Republican “coalition of restoration” and the Democratic “coalition of transformation”). In the voting rights case, the court upheld an Ohio law that rapidly purges voters from the voting rolls if they don’t vote in successive elections. This has been shown to push minority voters off the rolls but the court conservatives don’t care. In the gerrymandering case, the court overruled a lower Federal court ruling that the Texas Legislature had drawn congressional and Texas state districts clearly to disadvantage minorities. As an aside, it should be noted that the high court has ducked three other gerrymandering cases by sending them back to the lower courts on technicalities in order, probably, to avoid making decisions on very overt attempts by Republicans in state legislatures to make sure their party wins the coming midterm election in those states. In the same vein, I would note that this week 80 percent of the Republicans in the House voted last week for a bill that would have reduced immigration into the US to levels of the 1920s, though the bill did not pass.
The main media focus was on Trump’s third try at getting Supreme Court imprimatur on his ban on the immigration of Muslims from seven states on the basis of national security. Despite having had a rocky ride through the lower courts because of Trump’s anti-Muslim rhetoric during the campaign, which made the ban appear to be the product of bias, the Supreme Court waved this one through without much examination of Trump’s bias. Chief Justice Roberts opined that “there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility.” As a number of critics have pointed out, the last phrase seems to say while there may have been religious bias behind the ban, because of national security the court may ignore it.
One good thing did come out of this decision: after a strong dissent by Associate Justice Sotomayor, who particularly focused on the government’s reliance as precedent on the notorious Korematsu case of 1943, in which the Supreme Court upheld the internment of Japanese-Americans on national security grounds, a decision which every Constitutional expert, as well as the US Congress, have for decades agreed was wrongly decided, Chief Justice Roberts declared it wrongly decided on the spot. As Constitutional scholar Garret Epps noted, righting a long past wrong is good even if much overdue, but the Chief Justice and his sidekicks found it impossible to take a stand against the “current climate of fear and xenophobia being incited from high places in the government.” A layman like me wonders how the Chief Justice can totally discredit what appears to be a similar case the government relied on heavily to justify its ban and yet still uphold the Muslim ban? There’s something wrong with this picture.
As we know, the Immigration service has been disappearing immigrants suspected of being illegal for some time now (I wrote of such a case several months ago), and for a few weeks was disappearing the children of asylum seekers. Though the public outcry over the separation of children from their parents was so strong even Trump had to back down and rescind the order which started it, reports are that many are still separated. These court decisions, however, will be a clear signal to the Trump Administration that the conservatives on this Supreme Court have neither the nerve, the courage, nor the will to fulfil the court’s constitutional role as a check on the power of the executive branch, and that the administration has carte blanche to undertake any discriminatory policy it wants. And now I understand, as does every dissident American, that when the Trump administration comes for me, the Supreme Court will not lift a finger to stop it.
