The Arendtian Dread: Courts with Power

• Author: Or Bassok
• Date: 01 December 2017
• DOI: http://doi.org/10.1111/raju.12186
• Published date: 01 December 2017

The Arendtian Dread:

Courts with Power

OR BASSOK*

Abstract. Hannah Arendt was fearful not only of a populist President speaking in

the name of the people and unbound by legality. She was also concerned that popu-

lar support could be harnessed by those responsible for limiting it. In other words,

she was fearful of the American Supreme Court relying on popular support. This is

the meaning of her obscure depiction of the American Supreme Court as “the true

seat of authority in the American Republic” but unfit to power. I argue that Arendt’s

characterization of authority as requiring “neither coercion nor persuasion” means

that the Court’s source of legitimacy is expertise rather than public support. Yet the

current dominant understanding among American Justices as well as scholarsis that

public support is the source of the Court’s authority. In Arendt’s mind, such an

understanding means that the Court has become the seat of power. The corruption

of the Court’s authority and constitutional law as a language of expertise capable of

resisting public opinion will inevitably follow.

1. Introduction

Hannah Arendt would view the current reading of The Federalist No. 78 by Ameri-

cans, and especially Supreme Court justices, as capturing the source of the crisis in

which American constitutional law is currently in. In recent decades The Federalist

No. 78 has been paraphrased in the writings of the justices of the American

Supreme Court (hereinafter: the Court), legal scholars and political scientists (Bas-

sok 2016, 2013, 159–61), without even noticing they are changing its original mean-

ing. Americans now read The Federalist No. 78 to say that without the sword or the

purse all the judiciary has is public confidence (see, e.g., Republican Party of Minne-

sota v. White, 536 U.S. 765, 817–8 (2002), Ginsburg, J., dissenting; Gibson, Caldeira,

and Baird 1998, 343; Karlan 2012, 71). In The Federalist No. 78, Hamilton wrote that

without the sword or the purse all the judiciary has is merely judgment. Arendt

* Assistant Professor at the School of Law of the University of Nottingham. I am grateful to

Mikael Madsen, Marlene Wind, and Juan Mayoral for two generous invitations to the iCourts

Centre at the University of Copenhagen without which this paperwould not have been written.

I presented earlier drafts at the Trust, Social Capital and Networks workshop at iCourts, the

Max Weber Tenth Anniversary Conference and the 2017I-CON Conference. Marina Aksenova,

Richard Bellamy, Filipe Bastos Brito, Shai Dothan, Dana Schmalz, andAchilles Skordas offered

valuablecomments and assistance. All errorsare my own.

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Ratio Juris. Vol. 30 No. 4 December 2017 (417–432)

read Hamilton correctly: For her, the Court’s reliance on its legal expertise rather

than on public support was crucial for the survival of the American Republic. In

her terms, in order for the American Republic to survive, the Court must rely on its

authority (expertise in interpreting the Constitution) and not on power (public

support).

This article offers three insights on Arendt’s reading of the American Supreme

Court. First, I use Arendt’s reading of The Federalist No. 78 to show that the current

prevailing reading of Hamilton’s dictum on the source of the Court’s legitimacy is

not merely an innocent paraphrasing of Hamilton’s idea. Rather, it represents a

major shift in understanding judicial legitimacy in the US. Second, I explain

Arendt’s fear of a court with power as the fear of a court that understands its

source of legitimacy in public support. This point has not received any attention in

the literature thus far. Third, while Arendt’s major fear was of uninhibited

power—in the sense of public will unbound by any limitations—her writings also

expose a fear of corrupted authority. Arendt was thus fearful not only of a populist

President speaking in the name of the people, unbound in fulfilling popular will.

She was also concerned that popular will could be harnessed to support those

responsible for limiting it. Based on this insight, I suggest that Arendt would be

extremely concerned by the continuing erosion in understanding the US Supreme

Court as an expert, and instead the rise of the understanding that its source of legit-

imacy lies in public confidence.

2. Arendt’s Supreme Court: Authority without Power

Arendt believed that one of the chief reasons for the success of American democ-

racy is that the Supreme Court has authority but is powerless (Arendt 1965, 200). It

“was especially designed for the purpose of authority” (ibid., 199).

In Arendt’s terms, legitimate power resides in the people (ibid., 179), while the

“hallmark” of authority, “is unquestioning recognition by those who are asked to

obey; neither coercion nor persuasion are needed” (Arendt 1970, 45). Arendt’s

description of authority captures the traits involved in obeying an expert, such as a

doctor. In cases of expert advice, we indeed obey without coercion and sometimes

even without persuasion (Arendt, 1965, 91). Arendt is not shy in characterizing

authority as a hierarchal relationship and writes that “[a]uthority [...] is incompati-

ble with persuasion, which presupposes equality and works through a process of

argumentation [...]. Against the egalitarian order of persuasion stands the authori-

tarian [or authority-based] order, which is always hierarchical” (Arendt 1958a,

92–3).

By closely reading “What Is Authority?” we can detect that Arendt explicitly

writes on expertise as the basis for an authority-based relationship. After noting

that “[n]owhere else has Greek thinking so closely approached the concept of

authority as in Plato’s Republic,” Arendt discusses several examples that Plato

brings to “models of relations.” One of these examples is the “physician and the

patient” and Arendt notes that “[i]n all these instances [...] expert knowledge com-

mands confidence so that neither force nor persuasion are necessary to obtain com-

pliance” (Arendt 1958a, 108; see also 116). In a later text, Arendt gives another

example of a relationship of authority: the relationship between a teacher and a

418 Or Bassok

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