The current battle over the Supreme Court is only the latest in a series of conflicts between a right-wing administration seeking to impose its will on society and an opposition trying to defend the rule of law. I should be clear I’m talking about the Polish Supreme Court, though some parallels with our American crisis are evident.
Since coming to power in 2015, the Law and Justice Party (PiS) has sought to subordinate all state institutions, and even much of civil society, to its will. Its first order of business was taking over the Constitutional Court, thus making sure that none of its legislation would be thrown out. It succeeded two years ago.
The latest battlefield concerns the Supreme Court, a body with more influence on day-to-day matters than its American counterpart, as it is a kind of compilation of all the state supreme courts and courts of appeal in the United States. The new law purges the court of most of its members, allows PiS to immediately take majority control, and creates two new chambers (staffed only by PiS appointees) empowered to discipline other members of the court, unilaterally annul previous court decisions, and decide all complaints concerning elections. With legislation having already turned Poland’s bar into an association appointed by the government, thus limiting even candidates for judgeships to those vetted by a PiS body, the new law finalizes PiS’s takeover of the judiciary.
As befits a centralized state, Poland’s Supreme Court decides a vast number of cases each year (it reviewed 11,000 matters in 2017), and thus has a large number of justices. There were 80 before the new law. Of these, 28 are being forced out because of a new mandatory retirement age, and 4 because of the elimination of one of the court’s chambers, leaving only 48 still entitled to serve. But since the new law also stacks the court, increasing the number to 120, this allows PiS to appoint 72 new justices, giving the party 60 percent of the total. The actual percentage will in fact be higher, since several justices have announced their intention to resign in protest against the clear unconstitutionality of some of the provisions and the general degradation of the institution.
Passage of the law triggered the first invocation of Article 7 in the history of the European Union, threatening Poland with loss of its voting rights due to its violation of the EU rule on the separation of powers. It sparked mass demonstrations inside Poland, which revived in the first week of July when the law went into effect. It has also led to an unusual protest by the Supreme Court itself, whose members issued a statement pointing out the obvious unconstitutionality of the legislation’s sacking of the chief justice. Article 183 of the Constitution states that the chief justice of the court is appointed to a six-year term, and Article 180 states that justices cannot be removed. This makes it plain that Chief Justice Małgorzata Gersdorf, who took her post in 2014, cannot be removed until 2020. PiS says that since the Constitution also allows Parliament to set a mandatory retirement age, Gersdorf, who is 65, can be removed under this provision.
Gersdorf announced that she still considers herself the legitimate chief justice. But she is a professional, not one for the barricades, and so she also announced she was taking a “vacation” for a few weeks. The others whose terms have been cut have accepted their fate, despite the Constitution’s provision that no justice can be removed. Gersdorf may reassert her claim when she returns from vacation on July 20, but contrary to the protesters’ hopes, there will be no dual power. The government has announced that it will take the summer to review new applicants—and to coax new applicants, since until now few jurists have volunteered—and that it will present the court’s new lineup in the fall. Thus, just before the three rounds of elections coming up in the next year (local, European, and parliamentary), PiS-controlled judiciaries will be firmly in place.
How does PiS justify the new laws? Internally the party talks about judicial corruption and even criminal gangs. For months the official media have run endless horror stories about judicial malpractice. Some cases are real, others made up. The accused have no right to reply. In a recent national news program I watched, 18 of the 25 minutes consisted of attacks on either judges or opposition politicians. Not a single one was allowed a word of defense, even indirectly.
To the European Union, PiS plays the communist and colonial cards: We must purge the courts because they’re still run by communists, Prime Minister Mateusz Morawiecki told the European Parliament. The charge is implausible on its face, given the 29 years since the old regime came crashing down, but its absurdity is underlined by the fact that the head of PiS’s parliamentary committee leading the campaign to purge the judiciary is himself a former communist-era prosecutor, serving the regime even during the martial-law period of the early 1980s. PiS stopped considering him a communist once he joined PiS.
Poland supplements this with a colonialist defense. Who is (Western) Europe to criticize what we do, when Europe has historically taken us over, sold us out, and prevented us from being the power that we rightfully deserve to be? The victimization cards do have some effect in Europe: It held the EU back until the latest law, opposed by the vast majority of Polish jurists, triggered Article 7 (the consequences of which will be nothing but bad press, since Hungary has promised to veto any negative decision). Poland, like Hungary, has been unabashedly brazen in claiming both to be a Third World victim of European colonialism (its rhetoric sometimes sounds remarkably like that of countless national-liberation movements of the 1970s, and more than a few former Polish Marxists have joined PiS), while also asserting that it deserves the full privileges of whiteness that European membership, based on previous colonialism, is supposed to afford. The virulent anti-immigrant stance of these two countries, their open avowal of a white Christian Europe, is their way of asserting their full European-ness, and with a general crisis in Europe now over just these issues, it is, alarmingly, winning them foreign supporters.
The Nation Is Us
But all the stated justifications of the party’s judicial policies miss what for PiS is most important, which is that there must not and cannot be any check on the will of the Nation. This is the radical, anti-systemic claim the party puts forward. We’re violating the separation of powers? We do not accept any separation of powers! We’re violating principles of judicial independence? We object to judicial independence. We’re violating the Constitution? The Constitution wasn’t written by us; it doesn’t follow the correct principles. We play-act in abiding by it because we must, for now, since others do not yet accept our insistence on total parliamentary sovereignty for the party representing the Nation, and we still need these others for geopolitical and economic support.
On what grounds does PiS represent the Nation? On the grounds that it does.
As Michał Sutowski, one of Poland’s most perceptive left-wing analysts, points out, this assertion is what is most revolutionary, and reactionary, about the new right-wing parties populating our time. When they speak about the will of the people or the Nation, they’re “not talking about something that can be measured by polls, referendums, or even elections, but rather about some substance,” which the leader alone defines. When the leader wins elections, “his victory confirms his right to represent the people, but is not the source of that right.” If he loses, it is blamed on a mistake, or fraud. And indeed, when PiS leader Jarosław Kaczyński was losing elections between 2007 and 2015, he never simply acknowledged that voters were choosing another option, but always claimed that the Nation had been cheated, misled; or that the votes were fixed. Donald Trump, of course, also all but made clear he would never acknowledge an eventual defeat in 2016.
The assault on the judiciary is thus not a secondary matter but absolutely central: There must be no obstacle to what the sovereign Parliament can do, as long as Parliament is in the “proper” hands. When a journalist asked whether this means PiS can do literally anything it wants—like cut off the right to vote for residents of large cities, or mandate that all parliamentarians must be at least six feet tall—a PiS deputy and constitutional scholar replied, “In principle, yes.” The principle, however, is not transferrable. If a rival party asserts parliamentary sovereignty, PiS would not accept it, because only PiS is the Nation.
As it happens, the case against an independent judiciary is relatively easy to make in Eastern Europe, since limiting parliamentary power by a judiciary is a rather new thing. It became part of “best practices” promoted by the West only after World War II (the US Supreme Court was long just an anomaly), when new elites argued that the prewar chaos had come about because demagogues led the masses astray, and so courts must check what the demagogues and masses were able to do. In Eastern Europe, however, judicial checks were introduced only after 1989, just when the region became “free.” But while restraining untrammeled parliamentary power, somehow it never restrained capital or the rise of new elites. And it is against unrestrained capital and the cocky self-confidence of new elites with international connections that today’s radical right gains its force.
Debates Within the Left
How is the opposition responding? It is divided. While liberals call for a united front to restore basic democracy, the left fears that this will only revive the neoliberalism that they think is responsible for driving people to the right in the first place. Is PiS the main enemy, or is capitalism?
To understand these debates, in places quite similar to how the American left is responding to Trump, a short historical detour is in order, to look at how it came to happen that today’s right wins such support from groups that historically were aligned with the left.
For as we can now see quite clearly, today’s radical right, promising that it will take care of “regular” working people against a system that privileges “elites,” borrows from left strategy and tries to steal the left’s base. This first happened a century ago, with the rise of fascism. Until then, only the left was anti-elitist. The right, particularly in Europe, was the elite, the old propertied and aristocratic elite, fighting against the democratization that would empower the “masses.” Fascism changed that, denouncing the aristocracy and glorifying the masses. But instead of “workers’ power,” fascism called for “national revival.” Workers would be included by being soldiers for the Nation under its self-declared Leader. That fascists sought to steal the left’s base was clear by the label they gave to their program: national socialism. And when they came to power they introduced not only dictatorship but also some beneficial social policies—for those considered part of “the Nation.”
Most of the left—the so-called “old left,” including both social democrats and communists—eventually responded by also becoming champions of “the Nation.” After World War II, their expansive view of that idea led them to introduce the great inclusive social policies of postwar Europe. But their nationalism could also be quite exclusionary. In Poland, communist nationalists finished the ethnic cleansing the fascists had started, and boasted that Poland was now entirely a nation of Poles. Poland’s Germans and Ukrainians were deported after World War II, and in 1968, many surviving Jews were forced out on the grounds that they weren’t real Poles. In the West, social democrats mouthed internationalist slogans, but Western prosperity was long dependent on exploitation of the Third World.
The “new left,” in both East and West, broke with the old left over this question of nationalism. But in doing so, each also frayed ties with its own working classes. The Polish new left denounced the anti-democratic nationalism and anti-Semitism of the communist authorities, but believed that much of the working class agreed with the authorities. In Western Europe, the new left supported the national-liberation struggles of the Third World, even as much of the traditional working class lost out from the loss of empire. In the United States, the new left often clashed with the working class over Vietnam.
The break with nationalism, and with the racism that class-based movements so often perpetuated by ignoring, was a historic achievement of the new left. But it came with a cost, as it left the national issue available to be mobilized by the right. Today’s new right follows the classic path of fascism by doing just that.
Can the opposition take back “the nation”? That is at the heart of important debates among Polish opponents of PiS. On the one hand, those connected with the post-1968 “new left,” best represented by the liberal Gazeta Wyborcza newspaper, edited by former dissident activist Adam Michnik, try to ignore nationalism altogether, and champion liberal values of democratic procedures and a free civil society instead. The problem, however, is that the Gazeta Wyborcza milieu is the same one that ushered in neoliberal capitalism, also in the name of fighting nationalism.
Most young leftists today, therefore, reject this milieu. The result is that there is now a group of young leftists more committed to fighting capitalism than nationalism. Some of them are not even such fierce opponents of PiS. They don’t like PiS, because of its right-wing positions on so many issues, but unlike the liberals, some are even glad PiS won, because it meant an end to the celebration of neoliberalism and brought social and economic questions to the fore.
For PiS, in this respect, is not like Trump at all: It doesn’t cynically speak of working-class matters just to win votes and then turn around and promote corporate greed and plutocracy when in power. Instead, when PiS came to power it implemented a number of pro-worker economic policies, such as generous childcare payments that have cut poverty rates and strengthened the labor-market position of single mothers. It has increased minimum wages, lowered the retirement age, and cut back on the use of “junk” job contracts. It has imposed new taxes on foreign banks and insurance companies to pay for these programs, and new legislation right now is proposing higher taxes on the rich. Like the fascists of old, it doesn’t empower trade unions, as it wants people dependent on the party and its leaders instead. Some on the left, however, want to build on these policies, and not attack PiS as a whole.
Rafał Woś (pronounced “Vawsh”), a 35-year-old journalist at the weekly Polityka, who traces his left politics to growing up in a small Silesian rust-belt city and watching post-communist “shock therapy” destroy the economic and social fabric of his community, is one of the most eloquent spokesmen for this new kind of left. He’s no fan of PiS. He opposes PiS’s cultural politics, its rehabilitation of fascists, its doctrinaire Catholic traditionalism, its relentless attacks on anything left. (Recently all streets commemorating leftists were ordered renamed, a plaque marking Rosa Luxemburg’s birthplace was removed, and police showed up at an academic conference on Marx sponsored by Szczecin University to investigate whether “anti-national activities” were happening there.) But he objects just as much to the neoliberal Civic Platform party that governed for the eight years before PiS took over.
Yes, PiS violates the Constitution, says Woś, but “so did the liberals when they ignored those sections regarding the protection of labor.” Woś thus belittles the liberals’ and the West’s focus on democratic procedures (there are still elections, and PiS can still be voted out), and thinks the left should take over PiS’s nationalism and use it for class-based policies. He would like to see a left nationalism stripped of its racism, its anti-immigrant hysteria, its anti-environmentalism, and its “anti-gender” traditionalism. Most of all, however, it must be oriented to the working class.
That these “old left” ideas are coming back is not so surprising. The new left, after all, arose only when the old left had made great gains: In both east and west (of the Northern Hemisphere), the working class had, by the late 1960s, largely been incorporated into the system, with standards of living readily improving. The new left thus focused on other issues: an independent civil society, self-management and autonomy, challenging bureaucratic domination; and, in America, liberation for African Americans and women, plus opposition to the Vietnam War. Yet now we have a more participatory and less bureaucratic society, but unheard-of levels of inequality. For Woś and other young leftists, it’s class inequality that must be addressed today. If accepting nationalism gets this done, if conceding ground on identity politics and even on rule-of-law issues gets this done, some are willing to pay the price.
In a sense, such voices are similar to those of “never Hillary” Bernie supporters in the United States, for whom corporate Democrats can never be supported no matter how socially progressive or anti-racist they are. The dispute is just as contentious in Poland as it is in the United States.
In Poland, such a position makes more sense than here, since in a proportional-representation electoral system, people can vote for small left parties that can make it to Parliament. Woś is a supporter of Razem, a young left party styling itself after Podemos in Spain. Razem campaigns against inequality and against PiS’s attacks on democracy (it focuses more on the former than the latter), and led the successful mobilization against the proposal for a total ban on abortion. It has poll numbers ranging from 1 to 3 percent, with much stronger support in the large cities.
Still, there is something disquieting in the reluctance of this left (more true for Woś than for Razem) to join with liberals to defend basic democratic institutions, and in their limited endorsement of PiS on social grounds alone. Right-wing-nationalist social policy is a staple of fascism, and PiS has much in common with such traditions. We live in a very peculiar time right now: There are fascists, but no communists. So some on the Polish left seem to be trying to push themselves toward communism, or to a pro–working class politics that downplays the centrality of liberal democracy. And with election after election appearing to show fewer people interested in liberal democracy, and with liberal democracy chiefly being championed by neoliberals, it’s not surprising to see such a leftward push. In a decade or so, we can probably expect to see a revival of interest in old-style state socialism among a good part of the left.
But this runs the danger of forgetting the lessons of left opposition to state socialism. After all, workers fought for democratic institutions with which to defend themselves against Communist Party bosses claiming to represent working-class power. Benevolent leaders doing nice things for workers and the poor are better than those trying only to screw them further. Still, basic democratic institutions, including an independent judiciary, are vital to push back against those leaders when, believing they’ve already captured labor support, they turn their attentions more to dictatorship than to social policy.
As the liberal journalist Mariusz Janicki puts it, against this reemerging left tide, “If the old dissidents—and many of them had socialist views—were concerned only with equality and universal daycare, we’d still be ruled by First Secretaries.”
The Supreme Court crisis will pass. There will be a period of turmoil. But judges are not going on strike, Poland will not be tossed out of the European Union, and no one is taking up arms. And when the court is reconstituted, a few independent voices will remain—just like during the communist period. In fact, PiS rule is looking more and more like that of “mature” state socialism, after Stalinism, when “national communism” was at its peak. Another way of saying this is that it looks like an early variety of fascism, without the terror. One of the reasons it is so hard to combat is that its social policies win over those on the left who momentarily forget why democracy is important. If Trump ever introduced the pro–working class policies he talked about during the campaign, he’d be just as formidable.
Though this battle will be lost, the war is far from over. The struggle for the future, and the nature, of democracy—both in Poland and in much of the West—is unfolding, and how the left responds will be a key factor determining the outcome.