The result of a depressing collision of stupidity, opportunism, and a long-time conservative strategy Donald Trump now has the opportunity to imprint his name on another American institution. His decision to nominate Brett Kavanaugh is a serious threat to social progress. Like most of Trump’s ventures, the Trump™ Court will be bankrupt, certainly morally. It is a moment of despair, many hard-won gains are threatened by this seemingly arbitrarily awarded opportunity for the Right. We should be angry. Though our anger should not be limited to the current threat alone, we should be furious that our political system allows the balance of power to change so arbitrarily and makes this division permant unto death. Democratic rule demands democratic oversight. The Supreme Court is not some neutral institution that has been unjustly politicized, from its inception it has been an institution set against the people to protect the interests of the nation’s elites. As we engage in our struggle against this disastrous realignment we should not weep for what was not there, but be steadfast in our commitment to creating new institutions that are designed to protect the people and the vulnerable from the forces of reaction and barbarity.
Despite its claim to protect minorities from the “tyranny of the majority” the Supreme Court throughout its history has sided with the rich and the powerful. SCOTUS is an anti-democratic institution, its weight regularly burdens our political system to the point of crisis, with the balance favoring the powerful. All of the worsts episodes of American history have been achieved with the blessing of the court. All of the victories we have won, have not been given to us, but rather have been taken by determined social movements which forced the court to make the correct decision. The forces of reaction will have their revenge yet, as many of the social gains that passed through the court are now threatened. If we are serious about changing this country the Left must develop a strategy to deal with the SCOTUS if it has any hope of building the future we deserve.
Today the Left must consider what role it wants to Supreme Court to hold in our democracy. To think that important victories, like the right to abortions, the victories of the civil rights movements, and gay marriage are under threat exposes the fragility that our victories have if they can be pulled away by an undemocratically composed body. These have already been chipped away by this institution, with little regard to the general will of the people. Recent decisions like Janus threaten to erode union power in favor of corporate power. The SCOTUS reminded us by its recent endorsement of state terror by upholding the travel ban that it is the same institution that denied Dred Scott’s humanity, the same institution that legitimized the terror and genocide against the Native Americans, the same institution that interned the Japanese, and the same institution that sentenced Eugene Debs to prison.
The best justification of the Supreme Court is that it protects minorities from the majority. SCOTUS has failed this charge over and over. The Supreme Court’s inability to confront slavery or Native American genocide is bad enough but its active role in perpetuating and expanding these crimes against humanity. Monstrous decisions like Dred Scott V. Sandford and Johnson v. M'Intosh tarnished the justification for the Supreme Court. However, we do not need to look to history to justify the claim that the Supreme Court fails to protect minorities from state terror. The failure of the Supreme Court to overturn Trump’s clearly racist travel ban is a clear repudiation that the highest court does not protect those most in need of its protection. Even positive decisions like Brown V. Board of Education failed to articulate the necessary mandate to provide appropriate educational opportunities for P.O.C., these fights continue today.
Not only does the court often rule to defend the rich and powerful at the expense of the weak, when it does rule in favor of oppressed people it frequently does so in a convoluted way. The possibility that Roe v. Wade could be overturned is one of the greatest threats we face from this new court. To think that the right of women to control their own bodies is under threat is beyond contempt. At the same time, this right is denied to women across the country through the scheming of state governments and misogynists. Many poor and minority women effectively live in a society where Roe V. Wade has been overturned, whether it is from lack of access to clinics caused by ridiculous regulations designed to prevent this medical procedure, or from lack of ability to pay for the procedure. Unfortunately, Roe v. Wade did not rule that women as human beings and equal citizens under the law have complete control over their body but rather that the procedure was protected by the right to privacy. The failure to affirm abortion as a right of women opened up the space for the myriad of legal challenges that have chipped away at abortion rights in the US. We must defend Roe v. Wade because there is no future where its repeal brings a better future for our society, but we should not forget the failure of this institution to adequately protect this right and to affirm the autonomy and equality of women. The distinction between the right to have an abortion and the right to an abortion are radically different concepts and imply radically different views of women. SCOTUS in possibly one of its most positive moments came short. The political ramifications of a legal decision that strongly affirmed the equality of women under the law would have been significant. Instead, we have had to spend the past decades fighting against attacks from the Right on an incomplete ruling.
The Supreme Court has historically taken a position against those who fight for the poor, socialists. The overpraised and overcited Oliver Wendel Holmes Jr. was quite clear about the position of the legal system. When Holmes condemned Eugene V. Debs to prison in a decision that is a mockery of justice he made it clear that Debs’ socialist and anti-racist politics needed to be suppressed and factored into the sentence. In his decision, Holmes cited a pamphlet by Debs as evidence of his crimes and highlighted Debs’ “glorification of minorities, and a prophecy of the success of the international Socialist crusade, with the interjection that 'you need to know that you are fit for something better than slavery and cannon fodder.'” Eugene Debs’ was not alone in facing the wrath of this thuggish suppression of opposition to the WWI. Many know the often cited constitutional limit on free speech by Oliver Wendel Holmes that “falsely shouting fire in a theatre and causing a panic,” is not protected speech. Few remember what Holmes was referring to. It was not some thought experiment but a justification by Holmes to jail Yiddish-socialist dissidents for the crime of distributing pamphlets denouncing the war. Defenders of freedom and liberty indeed.
Of course, Debs and the anti-war movement were not the only targets of Holmes’ barbarity. In the horrifying case of Buck V. Bell, which affirmed the right of the states to sterilize people against their will Holmes stated: "three generations of imbeciles are enough." This case was later positively cited by the Nazi’s as justification for their sterilization programs.
The court is not only a threat to our individual rights, especially the rights of minorities, it is a threat to our political movements. Imagine for a moment what will happen if a Left-government came into power under the current system. Obamacare, which conceded extensive power and wealth to the private insurance industry, was met with legal challenges across the board. An actual socialist program would face a much more impassioned legal challenge and the history of the Supreme Court and American law, in general, pose a significant threat to winning victories for the working-class. If we have any intention of reforming this country through its current institutions we must seriously consider the challenge that the court poses to socialist progress and victory.
I will not be able to revisit the entire history of the Supreme Court siding with the rich against the people, it is not something that has gone away or will under the present structure. From Citizens United to this recent Janus decision, the Supreme Court though it has failed time and time again to support those actually threatened, those who are actually living under tyranny, it never misses an opportunity to cement the power of the wealthy. This is engrained in the politics of America.
The Founding Fathers were acutely aware of the class struggle to a degree that may be surprising to those socialists who have not taken the time to work through the founding ideas of the US republic. James Madison particularly was aware of this writing in Federalist 10, that across history “the most common and durable source of factions has been the various and unequal distribution of property.” The founders, especially Madison, had an impressive understanding of class struggle this is why the American political system is designed to prevent rapid changes in policy and direction, there was a fear of the chaos that could be caused by a government of the working people in the United States. Of course, the limitation on voting for landowners was a significant aspect of maintaining that politics would not threaten the class structure. The incongruent way that the doctrine of rights in America has been interpreted reveals the ideological underpinnings of the rights doctrine in the first place, in the United States it was to create equality between the wealthy and professional classes and to defend both from attacks from the bottom. The claims of the American Revolution, of equality, liberty, and freedom, were limited because the cause of inequality, repression, and coercion, with property being controlled by a small class, would fundamentally prevent these rights from being applied to the many. The rights doctrine claims to call an end to politics on certain questions, and by calling a truce on the question of private property it unravels the values it claims to preserve.
In modern politics anxiety over the Supreme Court has been used to justify threats to those who refuse or are unconvinced that supporting the Democratic Party is a strategy to build Left-power. The threat is very real and cannot be dismissed so easily. But is this constant state of crisis, not a problem in and of itself? Should basic human rights be threatened every election, that any loss by the Democrats will throw our political future into uncertainty? The status of the Supreme Court makes all the rights that we win fundamentally fragile and in danger. While people certainly remember this debate in 2016, they too easily forget that the same is made in virtually every presidential election for the past few decades, loudly. The right to undermine our society is not something that we should give away so cheaply, and if we must make strategic concessions in certain moments, we should seriously address the conditions that create the crisis. Clearly, if the Supreme Court, where arbitrary factors of the health of one person can so significantly redirect our society, we must take this much more seriously and aim to redefine our political system and our victories.
The Right has had no problem with this. They have for decades focused their energy on filling the courts with conservative judges who will reverse the victories of social movements. It is important to remember that despite the claims about Trump’s base his court picks were solid members of the elite, of the Harvard and Yale variety. It is this continuity that exposes the true make-up of the court and the role it plays in the ruling class. The court system is comprised of the American elite, of the rich and privileged, who enjoy a separation from the democratic will and the power to subvert the people if they were ever to truly come to power. It is no accident.
The Supreme Court is an institution with a reactionary history and its structure ensures that it will continue. I support plans to pack the courts in the future but we must remember that this will only achieve the goal of resetting the court, it does not change the fundamental structure and possibility that this can happen again. Hopefully, court packing will force the nation to come to the correct conclusion about the SCOTUS, that it is an inherently anti-democratic force and in the aim of fairness must be abolished and its powers redistributed to the popular will.
On a hopeful note, I hope that we remember that the victories that we associate with the court were not won in the courtroom. They were won by mass-mobilization that forced the courts to decide correctly. In that history, the American history of defiance and refusal to obey unjust laws, of fearlessly challenging our repressive systems at great cost, that is how we have won and that is how we won again. A few years ago Howard Zinn wrote at the beginning of the Roberts’ Court reminding us not to despair:
“The rights of working people, of women, of black people have not depended on decisions of the courts. Like the other branches of the political system, the courts have recognized these rights only after citizens have engaged in direct action powerful enough to win these rights for themselves.”
It was the social movements that pressured the courts, and Congress and our presidents to recognize the humanity and dignity of women, POC, workers, and immigrants. We should not allow any legal tricks or procedural nonsense to make us forget that. The power is with the people, as long as we realize it and demand what is just.