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For some time I have been convinced that US politics has been Latin Americanized. It is a process that began to become visible after the 2016 presidential election, although it came from before. Today, instead of improving, it seems to be getting worse, manifesting itself not only in polarization, division, lack of agreements in Congress, biases in the media, non-existence of State policy in a series of relevant matters, etc.
The problem is not only political, but there is a true cultural confrontation with two visions of the past and the present, and therefore of the future, and important sectors of progressives and conservatives, who not only disagree on specific issues, but who seek to subdue the adversary rather than convince him.
The element that today adds a lot of concern is another facet of Latin Americanization, which is the judicialization of politics, and, therefore, of its democracy. If something does and has done a lot of damage to democracy south of the Rio Grande, it is the judicialization of politics and/or politicization of justice. Along the way, what has just begun in the United States has been achieved, that is, transforming the courts and police into real weapons to be used against rivals.
It is true that since its origins, the United States has resorted to the courts to settle all kinds of disputes, and hence the special role of the Supreme Court in resolving, with binding effects for all and not only the parties, and in all the territory the subjects that he decides to know. No one, not even the president, has similar powers in the USA.
The substantive issues of the two sectors have not yet reached the Supreme Court, but there is no doubt that what is happening affects democracy, in the sense that, unlike in the past, today politics goes to court, more that to resolve a dispute, what he seeks is to perpetuate it in court for as long as possible, not for a solution in the hands of an impartial third party, but so that his own narrative ultimately prevails over that of the adversary.
In the same way, the claim is not only the judicial ruling, but also seeks to instrumentalize all the actors so that they agree with the respective narratives. This breaks one of the foundations of democratic coexistence, of which the USA could always be proud, so much so that it has not had any experience of military government or coup d”état in its entire history, so much so that the English language uses French for it ( e.g. Coup d”Etat). For democracy, this is based on the impartiality of those who have the legal mandate for force, not to intervene in civilian complaints, not even with opinions that there would be a “duty” to act in favor of a particular group. The mandate is set by law and not by the transitory power.
A common theme in Latin America was the process of loss of trust in justice as a non-corrupt arbitrator. It is a process that is beginning in the USA and it is enough to note the aggressiveness against some of the Supreme Courts that have been confirmed in the Senate. As the USA is more at the starting point than the arrival point, it is not appropriate to say who is right or wrong, but rather to warn of a problem where its so-called exceptionality in relation to other countries may not operate.
There is no doubt that decisions involving politics complicate courts of law and professional judges. In this regard, it is enough to recall the 2000 presidential elections between Bush and Gore, where in a short time different courts ruled differently on the best method to decide the winner, until the Supreme Court itself did not want to go into the bottom, ratifying what was done in the Florida State.
The question is if the exact same situation were repeated (the unverified complaints in 2020 were different), if candidates, parties, the media and others would act in exactly the same way, which, for me, is doubtful. In fact, prestigious pollsters such as the Pew Research Center have measured the loss of respect for the previously untouchable Supreme Court justices in public opinion, especially among those who have a partisan affiliation or sympathy, verified after the decision on abortion , which reviewed Roe vs. Wade, and which had aggressive demonstrations in the judges” own houses.
Among the problems is the fact that the USA lacks a system of courts, jurisdictions or judges specialized in quickly resolving issues strictly related to elections, as occurs in other democracies, which plays in favor of those who seek to last as long as possible. possible, the claims of national, state and local elections. However, lacking only an electoral system and being constitutionally rooted in the states, it is doubtful to think that it will have a quick or consensus solution. And, in fact, it has not.
Something very bad for the image and prestige of the system is that the idea of a double justice system is growing, which would resolve differently if the accused and/or prosecuted persons belong to mine or others, as well as the appointed judges ( from lower courts to higher courts) would lack the necessary credentials or impartiality, having been appointed to a government I don”t like.
Conspiracy theory? Exaggeration? I don”t know, just verifying what is happening, and that it is bad, very bad for democracy, above all, because it is the United States.
The same applies to the police, not only those that report to mayors and local governments, but also to the FBI, previously unanimously respected, but which is now facing increasing questioning, with accusations of having allied itself with big tech for censorship. selective to those who thought differently and also to have taken sides with one of the sectors in conflict.
Conspiracy theory? Exaggeration? Also, I don”t know. Just verifying what is taking place, as well as the voices that ask in Congress for the creation of a Commission similar to the one formed in the 70s and chaired by Senator Frank Church (who gave it its name) after the coup d”état in Chile, to evaluate the behavior of the CIA there, as in other countries, and that gave it a framework of behavior that essentially lasts until today.
The fact that this happens is not good for American democracy, since crossed accusations arise that were not heard before, about “lawfare”, that is, the judicial war or guerrilla, where justice is used as an instrument to persecute or judicially tie up the political adversary, in the sense of paralyzing and delegitimizing it. In the experience of Latin America and other regions, many times, a conviction is not even expected, but instead tying up the adversary for years in a bureaucratic labyrinth, which, in addition to the national component, is now added to the international issue, for example, unfounded accusations in human rights or corruption, to cite examples.
When the relationship between democracy and justice is unhealthy, there are different ways to affect democracy. One of the worst is the so-called government of the judges, where in the end, the administration of justice lends itself to affect the division of powers, ending up ruling on strictly political issues or issues exclusive to the executive or legislative power, which in no case It”s up to the judges.
In the same way, it is bad for democracy and republican institutions that justice is used for purposes of repression or social control, from which the United States is happily far away, or that it is subordinated to other spheres that escape the legal framework, such as ideas religious, as occurs, for example, with the sharia or Islamic law in Muslim countries.
By the way, no country is free from manifestations of something as detrimental to Democracy as political control of judges, although the USA is happily still far from it. But the fact that he”s still far away in no way means he”s immune, just that he should worry.
The appearance of a climate where judges are questioned from politics is very negative, where sometimes extreme sectors bring up the McCarthyism of the 50s, and the anti-communist persecution commissions headed by Senator Joseph McCarthy, and that both shame America today, for the number of innocent lives that were affected by false accusations.
None of this has happened yet, but it is noticeable how extremes, previously marginal, have achieved enough notoriety to attack civil liberties, due process and the rule of law itself, where freedom of expression is the one that suffers the most. The most visible thing is that the commitment that the end never justifies the means has been broken, and increasingly, there are those who seek to cancel others, using “noble” ends through very aggressive means, even violent, that is, “save” democracy, even if it must be attacked for it.
A hard test awaits the United States, when the political actors themselves are incapable of resolving their discrepancies, and they go to court to do so, but the difference with the past is that rather than obeying the sentence from now on, they seem to say that it will be accepted. without further questioning, only if it is favorable to them. And that breaks with all the tradition of the country, since the appearance of its constitution in the 17th century.
It is in the separation, independence and respect between the public powers, where the guarantee of freedom is found and for this reason, that in a democracy it is always expected that when politicians go to court, the anticipated respect for the judicial decision must be total, otherwise, manipulation can lead to the dream becoming a nightmare, if the political sectors in conflict seek that the judges confirm what they have done, rather than resolve in terms of what the law says.
Harsh test awaits the system. In the USA, the level of democratic debate has been impoverished, since it is difficult to dialogue with so much accusation and previous disqualification of the interlocutor. Politics has already used elements of hypocrisy and double standards, which are still not in the majority, but there is a loss of faith in the republic, that is, in the institutions that made the United States great, and the culture war into which the Politics has tribalized it, thinking more of the tribe of one”s own than of the nation of all.
In conclusion, it is increasingly sought that justice solve what politics has not been able to. The test that is submitted to the courts is tough, and yes or yes, this ends up in the Supreme Court anyway. It is to be hoped that on the day of its final ruling, the United States will have returned to the path of rational debate and great agreements for the benefit of its tradition of principled ethics, democratic progress and the fight for human rights.
Exactly what is put in jeopardy when you lose your way, regardless of your intentions. There is no fire, but in the USA today the danger is smelled.
Ricardo Israel es un reconocido escritor, bogado, analista político y académico chileno. Fue candidato presidencial de su país en 2013. Actualmente hace parte del directorio del Interamerican Institute for Democracy // Ricardo Israel is a renowned Chilean writer, lawyer, political analyst and academic. He was a presidential candidate in his country in 2013. He is currently a member of the board of directors of the Interamerican Institute for Democracy