James Butler · The Press v. the Judges
The British papers are at it again: a ‘loaded foreign elite’ (the Sun) have triumphed in their court challenge to the prime minister’s plan to use the royal prerogative to trigger Article 50; the judges have been declared ‘Enemies of The People’ on the front page of the Mail (the Telegraph, with venerable caution, has merely decided that the judiciary are ‘at war’ with the people). The judges’ personal lives are probed for telling details: one has an interest in European law, another – imagine the Mail journalist’s delight – is an ‘openly gay’ former Olympic fencer, practically a textbook decadent cosmopolitan. The Express, ever aware that it’s poppy season, says we are in the gravest crisis since Churchill exhorted us to fight on the beaches.
These are warning shots, supposed to straighten the spine of any MP or judge considering putting further obstacles in the way of the Brexiteers: if these are the headlines over a relatively minor court case, just think what would be in store for anyone voting against a Brexit bill should it ever be moved in Parliament. Perhaps the papers will Photoshop targets on their enemies' foreheads next time. Out of fashion for some time, the idea of the popular will is in vogue again, with the newspapers claiming to know it and defend it, and politicians claiming justification by it; Sajid Javid, the communities secretary, tried on such unfamiliar Robespierrean accents on the BBC last night.
Social media are awash with comparisons to Nazi or Stalinist categories of popular enemy, and though febrile headlines on their own aren’t sufficient grounds for those comparisons, they are indices of an ailing democratic culture. The recurrent paranoia about a ‘foreign elite’ is bad enough – it’s a mere hop and skip away from older and more familiar conspiracy theories – but subtler and more insidious is the relentless personalisation of the judges and the papers’ impatience with judicial checks on executive power or deliberative process. Personalisation says that it is inconceivable that a judge might carry out his judgments without thinking of private benefit or preference; invocation of the popular will implies that Parliamentary checks or deliberation can only frustrate it. The cynicism is corrosive of the very possibility of disinterest.
A commonplace of left-wing criticism of liberal democracy is that its formal equalities are accompanied by systemic inequalities which bias and warp its institutions; liberalism poorly conceals a horror and disdain for actual democratic practice. Certainly, some people are fantasising that this ruling will permit politicians to ignore the referendum entirely, citing Burkean cliché in their defence. This is the mirror image of the headline-writers' anti-deliberative fantasy of a sovereign executive cutting through the tangle of Parliament or judicial check. Both fantasies are equally unlikely, both are founded in a contempt for democracy either as mass participation or deliberation, and both feed, from different sides, the resentment of a sizeable portion of the country who feel the whole thing’s a stitch-up.
It is possible to criticise judges for bad judgments, or the judiciary as a class for the narrowness of its make-up, or to criticise a democratic system as imperfect or incomplete. But that isn’t what’s happening here. Writing about the role of newspaper coverage in influencing the political mood, Chris Leslie adapts the notion of ‘metarepresentations’ – a psychological term referring to the capacity to conceive of other people as thinking beings, and consequently reflect on what they are thinking – to describe the press construction of an impression of consensus. In this case, the papers claim to know the popular will with such clarity that they can represent what everyone else is thinking; in suggesting that a gaggle of elites is at war with the people, they keep open the suspicion and division on which the passion and promise of the Brexit vote rested.
It was not so long ago that some of these papers printed pages of impostured shock and grief when a pro-immigration MP was murdered, the same papers which print lie upon lie about migrants and defame those who refuse to accede to their xenophobia. Thomas Mair, charged with Jo Cox's murder, entered his name in court as ‘death to traitors, freedom for Britain’. Perhaps he should have considered a career as a headline-writer.