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Can American democracy survive the demise of impartial institutions?

The day after I arrived in Chicago to cover the mayoral debate, an Appeals Court removed frontrunner Rahm Emanuel’s name from the ballot. The decision, which reversed findings by the Chicago Elections Board and a Circuit Court judge, ignored more than 150 years of Illinois election law in denying that Emanuel met the residence requirements for a mayoral candidate.

Not surprisingly, the ruling drew outrage. The Chicago Tribune reported that the two judges on the three-person court who had ruled against Emanuel had gotten their jobs through the powerful alderman Ed Burke, who was backing one of Emanuel’s opponents in the election. Speculation was rife that the seven-person Illinois Supreme Court, which included three Republicans and a Democrat who happened to be Burke’s wife, would let the ruling stand. This was Chicago, after all, where politics reigns supreme.

But then, something odd happened—something I wasn’t expecting. Three days later, the Illinois Supreme Court unanimously threw out the Appeals Court ruling. “The novel standard adopted by the appellate court majority is without any foundation in Illinois law,” the majority opinion declared.

Emanuel went on to win the election, but that’s not the reason this event stayed with me. The court’s decision was so surprising because, in recent years, we’ve come to expect judges to vote along partisan, or at least highly ideological, lines. In ruling for Emanuel, the Illinois Supreme Court had done something increasingly rare for any institution in American politics: It had acted disinterestedly.

American democracy has long depended on institutions that behave this way. And not just the courts: It’s also the much maligned “mainstream media” of The New York Times, The Washington Post, CBS, ABC, and NBC, as well as the older think tanks and policy groups, like the Brookings Institution and the Council on Foreign Relations. All of these institutions have traditionally rested their laurels on disinterested judgment. They might not always succeed, but it’s the standard they set for themselves. And, when they do meet it, as the Illinois Supreme Court did, it’s as if a cool breeze has blown through the overheated landscape of American politics.

In the last few decades, however, first the left and now the right have trained their sights on this realm of disinterestedness, seeking to discredit and undermine it. Recently, these attacks have seemed to increase. The result is that, today, a very basic feature of American democracy appears to be in peril.

The notion of disinterestedness was an important part of the Founders’ vision for the country. In The Federalist Papers, Alexander Hamilton described the “independence of the judges” as “requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which ... occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.” But it was in the late nineteenth and early twentieth century that disinterested institutions truly became integral to the functioning of the American polity. At the time, the rise of giant corporations and the growth of an industrial working class had given the lie to the Jeffersonian-Jacksonian dream of democracy based upon the dispersion of small-property owners. As business and labor clashed, the preservation of democracy appeared to rest on finding a way to reconcile these two groups. But who could possibly mediate between labor and business, and ensure an outcome acceptable to both? Theodore Roosevelt and Woodrow Wilson both staked out this ground; but the role also fell to a new kind of policy group and publication that was committed to being above party, class, interest, and ideology.

The first of these groups was the National Civic Federation, which one of its founders described as a “sort of Hague tribunal” that would provide “a neutral ground where conflicting interests can meet and adjust themselves.” The Brookings Institution also dates from this period. Retired St. Louis businessman Robert Brookings, who founded it in 1916, said he wanted an institution “free from any political or pecuniary interest” that would “lay before the country in a coherent form the fundamental economic facts.” Brookings’s first president, Harold Moulton, was a laissez-faire economist, yet, when coal operators complained bitterly about a Brookings study in 1928 calling for the nationalization of the industry, he rebuked them for demanding that his think tank heed their interests in its research.

The key elite publication of the era was The New York Times. Prior to Adolph Ochs’s purchase of the Times in 1896, most newspapers were either party organs or sensationalistic rags that had little regard for the truth. Ochs insisted that the paper be “non-partisan,” that it “give the news impartially, without fear or favor, regardless of any party, sect or interests involved,” and that it “make of the columns ... a forum for the consideration of all questions of public importance, and to that end ... invite intelligent discussions from all shades of opinion.”

Together, these new institutions occupied a gray space between civil society and the state. They saw themselves as providing direct guidance to government and educating the public about national and world affairs. They didn’t always say so publicly or explicitly, but, by defining themselves as above party and interest, they adopted a mediating role in society—between business and labor, and later between the general public and the more militant wings of the civil rights, consumer, and environmental movements.

To be sure, these groups and publications didn’t always live up to their billing. During the 1920s boom, the National Civic Federation abandoned its mediating role and became obsessed with Bolshevik influence on the labor movement; the Ford Foundation, which was founded in 1936, may have crossed over the line in the late ’60s when, among other things, it funded a voter-registration drive for a mayoral candidate. The courts, too, sided ostentatiously with business against labor during the late nineteenth and early twentieth centuries and, later, seemed too willing to read demands for social reform into the Constitution. Still, until recent decades, courts, journalists, and think tanks remained, on the whole, a fairly disinterested realm—and the idea that disinterestedness was a goal these institutions should be striving for was not particularly controversial.

This began to change in the late ’60s, when the idea of disinterestedness came under attack from the New Left. The courts, institutions like Brookings, and mainstream publications and news networks were portrayed as instruments of capitalist guile—of “corporate liberalism” or “neo-imperialism.” Subjectivity was extolled and the attempt to be objective derided, whether in science, social science, or journalism. The counterculture, leftist historian Theodore Roszak declared, “has turned from objective consciousness as if from a place inhabited by the plague.”

Some of this outlook has endured on the left. It can be found in the skepticism about legal neutrality expressed by the Critical Legal Studies movement or the “post-modern” theories of truth put forth by some American disciples of fashionable French philosophers. But, for the most part, the left’s challenge to disinterestedness has faded. Instead, the left’s critique has been repackaged and repurposed by conservatives. And they have had considerably more success than their New Left forbearers in discrediting disinterested institutions.

In the early ’70s, conservative Republicans began to charge that think tanks and mainstream media were not above ideology and interest but were in fact arms of Democratic Party liberalism. They attempted to establish counterinstitutions, such as the Heritage Foundation, which they claimed were equivalent in overall mission to the older policy groups but were conservative rather than liberal. And, taking advantage of the genuine commitment of the mainstream media to being above party and ideology, they demanded equal time and space for their experts.

But the new groups were different from the old ones. Though they were not official arms of the Republican Party, the groups often acted like they were. They had a broad political agenda and—on specific issues ranging from the Iraq war to President Obama’s health insurance plans—a de facto institutional “line.” That wasn’t a problem in itself. There have always been political groups that have been tied to specific parties and ideologies. The problem was that the new groups claimed that they deserved the same deference from the media and the public as the older groups. In this way, they were able to achieve parity with institutions that really were striving, however imperfectly, toward an ideal of disinterestedness.

Television was a principal target. Conservatives had long argued that mainstream TV journalism was liberal, and they finally got a shot at having their own outlet when Rupert Murdoch hired Republican political operative Roger Ailes to build Fox News in 1996. Of course, Fox became home to conservative pundits like Bill O’Reilly and Sean Hannity, but that was significant only insofar as Fox limited itself, with minor exceptions, to these kinds of commentators. What was more important was the way it dealt with the news. In presenting the news, Fox claimed to be “fair and balanced,” but, under Ailes, its broadcasts reflected the outlook of Republican conservatism. One memo unearthed last year from the network’s Washington managing editor told reporters covering health care to use phrases such as “government option” instead of “public option”— advice echoing Republican consultant Frank Luntz. To many journalists (myself included) and experts who have been interviewed on Fox, the bias is transparent in the questions that anchors ask and in the direction they lead the discussions. By claiming that they are doing the same thing as other news shows, Fox has undermined the very notion of disinterestedness. They have reduced it to a cynical advertising slogan.

Most recently, conservatives have set their sights on radio, seeking to eliminate funding for National Public Radio (NPR). Many conservatives have justified this move by saying they want to reduce government spending; their rhetoric, however, frequently betrays hostility to the existence of NPR, which activist Brent Bozell has called a “left-wing playground.” When NPR began broadcasting in 1971, it conceived of itself as an alternative to the mainstream media, but, beginning in the early ’90s, it set up new ethical standards that matched those of the networks and major newspapers. Clearly, the news organization has sometimes strayed—most recently, when it fired columnist Juan Williams for making a politically incorrect remark about Muslims on a Fox News show. Yet its news programs are generally solicitous of all sides in a controversy, and it has bent over backward to avoid being tainted by party or interest. NPR staff were even barred from attending the rally on the Mall last October staged by Jon Stewart and Stephen Colbert.

The last and most important target of the conservative attack against disinterestedness is the federal bench. Of course, right-wing criticism of the courts, which often takes the form of an argument for “strict constructionism” or “originalism,” is not necessarily at odds with the quest for disinterestedness. On the contrary, conservative concerns about Warren and Burger court rulings were a reaction to trends within the judiciary that, in some ways, mirrored those on the New Left. Conservatives maintained that, in some of these decisions, most notably Roe v. Wade, the court had read into the Constitution ideas that weren’t really there in order to achieve political ends. Some liberal scholars, including The New Republic’s Jeffrey Rosen, have been sympathetic to such arguments. Whatever its merits, this conservative case was not an attack against disinterestedness but, rather, a stand on behalf of it.

In the last three decades, however, the conservative critique of the courts has slid into very different territory. Libertarians and business conservatives have advocated using the “takings clause” of the Fifth Amendment to invalidate most federal regulations of business, including environmental protection and the minimum wage. That’s a tortured interpretation of what it means to “take property for public use”—one concocted, it would seem, to justify an attempt to roll back most regulations adopted since 1932. And, in trying to enlist the courts in their effort to repeal Obama’s health care plan, conservatives have resorted to legal obscurantism, introducing a distinction between “activity” and “inactivity” (which does not appear in the Constitution) to argue that the federal government doesn’t have the right to impose a penalty on the “inactivity” of failing to buy health insurance.


When I first aired these ideas about disinterestedness in 2000, David Brooks, who was then working for The Weekly Standard, criticized me for equating being disinterested with being liberal. “Couldn’t conservatives be disinterested?” he asked. It was a good question, and I don’t think I answered it adequately then.

Disinterestedness is a complex thing. At one level, it means trying to mediate between conflicting classes, social groups, and interests. It means not tying yourself to business or labor, Northerners or Southerners, whites or blacks, natives or immigrants, but trying to develop an outlook and policies that reconcile them. It doesn’t entail support for any specific reforms or any specific methods of achieving reform. This is a stance that should be able to cut across much of liberalism and conservatism, including the kind of conservatism for which Brooks stands.

The other main characteristic of disinterestedness is that it can only exist at a certain remove from the immediate political fray. Democratic and Republican politicians may attempt to reconcile interests and even sometimes ideologies, but they are not fundamentally disinterested actors, nor should they be. We can speak of a politician who is capable of being disinterested, but not necessarily of a disinterested politician. The purpose of the early twentieth-century policy groups and publications—and their current descendants—was to create institutions that could play a role politicians could not. Journalists at The New York Times, for instance, may be more likely to vote for Democrats rather than Republicans, but they are taught and required by their publication to put aside their own partisan inclinations when reporting. The Founders envisioned a similar role for the courts, which is the reason Supreme Court justices enjoy lifetime tenure and therefore owe nothing to the party that nominated them. And the court has sometimes functioned exactly as designed. After former Democratic official Byron White joined the court, he took positions that offended many in his party. Later, David Souter, a former Republican official, ended up infuriating many Republicans.

There are, of course, gray areas in all of this. Discerning where disinterested readings of the law morph into political activism—on both the left and the right—is a difficult and highly imperfect business. The same goes for disinterested newspaper reporting or disinterested think tank research. But that doesn’t mean disinterestedness does not exist, or that the quest for it is foolhardy, or that broad judgments about whether institutions are striving for disinterestedness are impossible to make. It should not be controversial to assert that the reporting of the Times reflects a very different journalistic philosophy from the reporting of Fox News or that a scholar at Brookings or the Urban Institute operates under different strictures from one at the Heritage Foundation.


Ultimately, the success of disinterested institutions depends on two things: the character and views of the individuals who serve them, and widespread public support for their existence. This second pillar appears to be eroding. There have always been anti-capitalist revolutionaries and hard-line reactionaries in the United States who rejected the possibility of disinterestedness, but, except for brief periods, they have been marginalized. What’s disturbing about the present is that a significant percentage of conservatives now refuse to accept the Times as a trustworthy news outlet, or the courts as a vehicle for simply analyzing the Constitution, or think tanks like Brookings as a reasonable source of research. And some liberals have responded to this not by defending disinterestedness, but by beginning to mimic the right’s rejection of it.

Will this challenge to disinterestedness fade with time? Will it go the way of the Illinois Appeals Court’s overturned decision to deny residence to Rahm Emanuel? I certainly hope so, because, if it does not, we could be looking at a political system that begins to resemble that of the late nineteenth century, with its sharp and seemingly unresolvable clashes between different groups in American society. The next big test will be the Supreme Court’s ruling on Obama’s health care plan. If the court rejects the plan on the kind of spurious grounds that its opponents have endorsed, then it will have abandoned its historic commitment to disinterestedness. And American democracy will be in very big trouble.

John B. Judis is a senior editor at The New Republic. This article originally ran in the April 28, 2011, issue of the magazine.

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