A Blow For Freedom

In a recent court ruling, a district court judge ruled certain aspects of a Presidential decree using terrorist blacklists unconstitutional. The case had been percolating for years, and was brought by the Humanitarian Law Project on behalf of two groups, Kurdistan Workers Party and Liberation Tigers of Tamil Eelam. This is undoubtedly not the end of the case. Although the government has not yet decided on an appeal, it is likely to do so. However, regardless of whether the government does so or not, its results should not be confused with a victory for freedom against tyranny. No doubt it will be a good thing for the specific groups affected, and who were bizarrely included in the list of 'terrorist organizations.'

But no defense of liberties is serious and lasting if it is won in the courts alone. Indeed this case, brought by a liberal organization that self-consciously styles itself as political, and which includes David Cole, a widely visible liberal public intellectual, is one of a smattering through which liberals continue to try and defend civil liberties through judicial activism. The shift from a mass movement for civil liberties towards an elite activity taken up almost exclusively in the courts is a long term historical process. And at one time, one can imagine judicial activism having been one part of a broader movement for the expansion of liberty. Now, however, cases like the recent decision might limit the arbitrary powers of the President in some small way, and help a few individuals out. But its broader significance is, in the present climate, not progressive. Rather, this kind of judicial activism, and especially the politicized lawyers organizations, are a sign of the degree to which these groups have retreated from winning their arguments in the court of public opinion. Indeed, the emphasis on judicial activism now registers a distrust of the public, and an unwillingness to engage in the more difficult, but more important and enduring work of convincing the public that these cases are not just individualized instances affecting specific political groups, but matters of concern for the health of politics in general. A society that favors judges over the public is not free no matter how rigorously and fairly those judges apply the law.