Dan Siegel Supreme Court Trump

Trump’s Last Laugh

Trump's Supreme Court has rolled back and modified a number of important rulings, writes Dan Siegel.
Protests at the Supreme Court of the United States on the day Roe vs Wade was overturned, 2022. Ted Eytan from Washington, DC, USA, CC BY-SA 2.0 https://creativecommons.org/licenses/by-sa/2.0, via Wikimedia Commons

By Dan Siegel / Original to ScheerPost

Trump lost the election, but he had his revenge, leaving us the worst Supreme Court since the Civil War. The irony of Trump’s success in creating a Court ready to approve the agenda of the far right is that the Republicans can now dump him in favor of a less polarizing but equally reactionary leader, say Ron DeSantis, and take advantage of a generational shift in power that can thwart progressive change for decades.

The Trump Supreme Court has inflicted, and will continue to inflict, serious damage that people will have to fight in other arenas, in the streets and in elections for Congress and state legislatures. The Court also calls the question on what must be done to achieve democracy and socialism in the United States. The Supreme Court, the Senate, and the Electoral College are three fixtures of our system of government that comprise major roadblocks to creating a democratic society.

In just a few short weeks in June the Trump court wiped out abortion protections that had been in place for 50 years (Dobbs v. Jackson Women’s Health Organization), rewrote the Second Amendment (New York State Rifle & Pistol Assn. v. Bruen), eliminated the right to sue cops who coerce confessions from people (Vega v. Tekoh), endorsed efforts to make Christianity America’s state religion (Kennedy v. Bremerton School District), and brought the world steps closer to climate calamity (West Virginia v. Environmental Protection Agency).

Today’s Court is not unlike the court that tried to hold back abolition with its Dred Scott decision. In 1857 the Supreme Court was dominated, as it is today, by justices who claimed allegiance to the “original intent” of the framers of the Constitution. Chief Justice Roger Taney, a slaver from Maryland appointed by the Trumpian Andrew Jackson, ruled that an enslaved person brought into a state where slavery was forbidden did not become free, even after living there for five years. Taney ruled that both enslaved and freed Africans “were at that time [when the U.S. was founded] considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.” Taney concluded that neither freed nor enslaved Africans were or could be citizens, could not be allowed to vote, and had no right of access to the courts.

The most important conclusion that can be drawn from the decisions of the Supreme Court in 1857 and 2022 is the understanding of its character as an inherently conservative institution that stands in the way of political or social change. The Court was designed that way – presidents who hold office for a few years make lifetime appointments to an institution that has faithfully upheld the politics of those who appointed them. In the Dred Scott decision, Taney wrote, “No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.”

The Supreme Court established its power to overturn decisions of Congress and the president in the 1803 case of Marbury v. Madison. It ruled unconstitutional a provision of the federal Judiciary Act that would have allowed it to order President Jefferson and Secretary of State Madison to install judges appointed by President John Adams after he was defeated but before Jefferson took office. Many legal scholars and other historians criticize the decision as gratuitously overbroad because its assertion of the Supreme Court’s power was unnecessary to resolve the case before the Court.

It was not until the Dred Scott decision that the Supreme Court again invalidated a law passed by Congress, in that case the 1820 law that prohibited slavery in the northern part of the 1803 Louisiana Purchase from France. Taney’s erasure of what was known as the Missouri Compromise relied upon a tortured analysis of the Constitution’s provisions giving the federal government authority over new territories acquired by the United States.

Taney concluded that the act of Congress prohibiting a citizen of the United States from taking his slaves with him when he moved to the northern area of the Louisiana Purchase was an unwarranted exercise of authority over private property not authorized by the Constitution. The owner’s decision to take Dred Scott to the new territory gave the slave no more right to freedom than that enjoyed by the donkey taken on the same trip.

The Supreme Court gutted the practical application of the Thirteenth Amendment’s ban on slavery in Plessy v. Ferguson (1896). Upholding Jim Crow laws over the freedom of those formerly enslaved, the Court concluded that a Louisiana law that allowed the criminal prosecution of a Black man who insisted on riding in a railway car reserved for whites did not offend the Constitution. The Court concluded that the Louisiana legislature was “at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.”

As the Court emphasized in Plessy, “Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the fourteenth amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.”

The Court is still eager to uphold America’s customs, regardless of how offensive they are to modern society. Justice Samuel Alito’s decision in Dobbs v. Jackson Women’s Health Organization resurrects the Court’s concern about America’s customs and traditions. Alito’s analysis begins and ends with his observation that when the Fourteenth Amendment was adopted in 1868, abortion was a crime in three fourths of the states. True enough, but of little relevance in 2022.

When the Constitution was adopted in 1788, most of the Founding Fathers supported slavery. Many, including Washington, Jefferson, and Madison, owned slaves. Africans, indigenous people, and women had almost no rights. The First Amendment said nothing about speech on radio, television, or the internet, and the Second Amendment required that Americans be allowed to keep their muskets at home so they could serve in the militias needed to round up fugitive slaves and slaughter native people. No one worried about assault rifles or freedom of religion for indigenous people, Jews, Muslims, Hindus, Buddhists, or Wiccans.

Like reactionary judges of the past, Alito relies on legal principles that were wrong when they were articulated, such as the Supreme Court’s 1976 ruling that excluding pregnancy from an employer’s disability plan is not sex discrimination (General Electric Co. v. Gilbert). The Gilbert decision caused such outrage that Congress wrote a new law to overrule it.

The “separate but equal” principle endorsed in Plessy lasted until it was finally overruled in 1954. In Brown v. Board of Education of Topeka, Kansas, the Supreme Court finally concluded that segregated public schools actually do violate the equal protection clause of the Fourteenth Amendment.

The exceptions do not negate the rule. The Warren Court betrayed its Republican roots when it was drawn into the emerging struggle for civil rights and helped to fuel it with its decision in Brown. Earl Warren, nominated by President Eisenhower to manage the Court from the traditional Republican perspective he exemplified as California’s attorney general, experienced a personal sartori and began to see himself as a force for social change. Under Warren’s leadership the Court began to dismantle the structure of segregation and developed principles protecting the rights of people accused of crimes. But he was the exception.

Far more often than not, the modern Supreme Court has twisted itself into semantic knots to favor the interests of America’s corporate elites. Today’s Court avoids interfering with state election laws that trample the right to vote and allow absurdly political gerrymandering of electoral districts. But in Bush v. Gore (2000), the conservative Supreme Court majority overcame its deference to state court rulings in election cases and overturned the decision of the Florida Supreme Court ordering a recount of ballots in the close election. The Court handed the presidency to George W. Bush. Current Supreme Court Justices John Roberts, Brett Kavanaugh and Amy Coney Barrett were all in Florida in 2000 playing for the Bush team in Bush v. Gore.  Few observers argued that the decision would have been the same if Al Gore was ahead when the recount was ordered. 

No discussion of Supreme Court politics would be complete without mentioning Citizens United v. Federal Election Commission (2010), where the Court ruled that the Bipartisan Political Reform Act violated the First Amendment rights of corporations to make unlimited financial contributions to political campaigns. Interestingly, the justices who typically insist that the Constitution be interpreted according to the original intent of its authors appeared unconcerned that nothing in the Constitution says anything about “corporate citizenship” or the “rights” of corporations to participate in elections. Perhaps the next challenge will come from supporters of the Microsoft for President campaign.

Like the United States Senate and the Electoral College, the Supreme Court presents a major barrier to achieving democracy in the United States. For over 200 years the Court has blocked efforts to abolish slavery and its ongoing legacy, achieve equal rights for women, defend and expand the democratic vote, regulate the distribution of increasingly dangerous weapons, and protect the planet from the dangerous impacts of climate change. Against this record, the assertion by Chief Justice Roberts that the role of a Supreme Court justice is akin to a baseball umpire calling balls and strikes is laughable.

The creation of a democratic society requires that the extraordinary burdens on progressive political change imposed by a Court that follows its conservative political agenda be minimized if not completely overturned. Some change in the institution can be accomplished short of a constitutional amendment. Congress has the authority to eliminate lifetime tenure on the Court by enacting reasonable term limits for justices or by expanding the number of judges on the Court. These are issues that must be addressed by the movements for progressive change in the United States.

Dan Siegel
Dan Siegel

Dan Siegel is a civil rights attorney in Oakland.

13 comments

  1. Good article.
    However, I am tired of reading that “Thomas Jefferson owned slaves”.
    As if that proves that he was just the same as all the pro-slavery people.

    Thomas Jefferson was against slavery. All his life he fought against it.
    He held up the ratification of the U.S. constitution trying to outlaw slavery.
    When finally was made to realize that he could not win, he bitterly said “200 years from now, we will still regret this decision made today”.

    The slaves Jefferson owned were inherited from his Parents. The only (few) slaves he bought were to unite slave families.
    It is not fair to lump Jefferson in with all the pro -slavery founding fathers. With how often it is mentioned, I suspect it is for shock value and a nod to conservatives, who don’t like Jefferson.
    In all these articles it is never stated what Jefferson could have done to free his slaves. The law where Jefferson lived was that Freed slaves had to leave the area. Where would they go?

    The North did not want them. New York City was threatening laws against runaway slaves coming there. They could not be sent back to Africa, Jefferson’s slaves were not first generation slaves, they were born here and spoke English.
    I wish writers would take the time to mention some of this, instead of just gleefully throwing Jefferson in with the rest.

    1. Jefferson was not the only one. Jefferson’s life is well researched which bears out what you have written. There’s a problem with trying judge people of past ages in an attempt to justify today’s wrongs. Society is not always a moral force.

      1. It is called “presentism” – the application of present day standards to Historical behaviour.
        It is, of course, an activity indulged in by those with acute sotftening of the brain.

    2. Sorry, but Jefferson did indeed purchase some 20 new slaves. He only freed 2 while he was alive.
      Thomas Jefferson was a reprehensible creep. A spoiled rich boy who’s personal motto it appears was “what is good for thee, is not for me.”

    3. Whew. You need to read the thoroughly-researched and brilliantly written book “The Hemings of Monticello,” as your ‘facts’ about Jefferson’s slaves (and slave-owning inclinations) are a total white-washing of his real actions and proclivities.

    4. Well put, it’s always good to get better insight and details into past prominent people and situations.

    5. I agree, in my studies of Thomas Jefferson. I had found that he treated them as humans and not slaves. He only accepted them due to nature of that social environment towards minorities. Perhaps USA will never truly be egalitarian due to this regime of winner takes superiority refusing equal dignity to all erhinically and gender via Class War struggle preventing us to be humans.

  2. Years ago, professor Sheldon Wolin argued United States is and has been “inverted-totalitarianism” in his book on pseudo-capitalism USA. Irony was, United States was founded upon principal for free market response to East India Company of King George III and English empire. Let me state that again because the word and title “empire” isn’t used lightly. By some unreasonable explanation a rag tag of British colonists – mostly farmers defeated the greatest military empire on the planet. Yes the French aided, but France wasn’t doing well as state.

    Also remember United States Constitution was difficult to get ratified due to anti-federalist debate of President-king. Which with our current National Security State that coup of two other branches. There by making as we saw with Don the Con January 6th raid on policymakers a king is what USA has; fulfilling anti-federalist argument pre-ratification of US Constitution.

    Economic equality and ethnic and gender equality was always the illusion for verbiage of “We the People” as well as “life, liberty, and the pursuit of happiness” as Frederick Douglass argued in his Independence Day speech. As well as I Have A Dream by MLK. Democracy and egalitarianism was and isn’t in the cards for us regardless of mainstream media puppets constantly using such verbiage of delusion to fulfil what Orwell argued in 1984.

  3. The word ‘last’ seems incredibly optimistic.

    I’m not sure the Democrat’s policy of inflation, corporate bailouts, massive foreign aid and global nuclear war is going to be very popular with the voters. And its only a two party system, designed to maintain corporate power by channeling votes of disgust to the other corporate party.

    In fact, in looking at midterms, it would be wise to remember that the Democrats are historically very over optimistic on what is about to occur.

    Oh well, at least we might finally retire Nasty Nancy this time, and she can back to just being far richer than us mere mortals. Voting Progressive sure hasn’t done the trick, so at least the Republicans can do the job for us.

  4. “We hold these truths to be self-evident, that all people are created equal, that they are endowed with certain unalienable Rights, that among these (but not limited to) are, Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among People, deriving their just powers from the consent of the governed”

    I still like that thought.

    I can also see why almost all modern Democrats and Republicans would hate this idea, seeing as they would all side with King George and deny any right of self-determination. They’d all be supplying King George with howitzers and rocket launchers, and drinking with their banker friends about the great profits from supplying the army with the tools of the trade.

    So, of course we see smears of the man who wrote such words that strike terror into the heart of imperialists. That is something else which is self-evident.

  5. any marxist is fully aware that US liberals have always been the most reactionary—only a moron believes differently

  6. The author’s bias is clear, since he uses the term “Progressive” near the end. Sorry, but this is NOT Trump’s Supreme Court, and never will be. Worth a read, since the article goes deeper into legal decisions than most mainstream media articles, but it is mostly about Plessy v. Ferguson, and only briefly mentions its being overturned by the Brown v. Board of Education decision almost 60 years later, with absolutely no Constitutonal amendment. This is the problem with SCOTUS. Earl Warren is just as bad as Roger B. Taney for just throwing his big-government opinion into the decision. (One tries to create “social change,” while the other tries to prevent it. SCOTUS has no business overturning its own precedent. If in 1896, they saw their ruling as conforming to the 14the Amendment, and DC schools were segregated then, there is no way to eliminate this unless the States choose to on their own, or another amendment to the Constitution is made.) The article does not mention the Northwest Ordinance, which governed the territory in which the Dred Scott decision ruled over. Also, not only did his slaveowner take him into that free territory, but both he and his wife left them there for years, expecting him to remain passively in bondage. It would have been very easy for him to run North to freedom, but he had the help of Quakers & other Abolitionists to fight the case out in court. Where Marbury v. Madison and all these other court cases get it wrong is that SCOTUS should not have the power to overturn the will of Congress & the individual States, the only body truly elected by the People. Remember that the President is chosen by the Electoral College, which is not bound to the popular vote. Like the baseball umpire mentioned by the Left-wing John Roberts, SCOTUS really should have no other purpose than upholding the rules expressed in the Constitution, as well as the original intent of any Congressional legislation. The President does not make laws — he can sign or veto, but Congress can also override a Presidential veto. Also, the article is incorrect in declaring that the majority of the founding fathers supported slavery. Most of the Northerners did not, and plenty in the South, especially the Anti-Federalists, worked to remove such words from the 1787 Constitution (which did not even exist in the Articles of Confederation, btw.) The 3/5 Compromise was just that — a deal to get all States to agree, and to put the controversial issue aside. Likewise, Article I, Section 9 gave the slave trade 20 years to come to an end. Ben Franklin, who at one point did own slaves, also helped the PA Abolition Society; Thomas Jefferson (who was in france in 1787) had tried to speak against slavery in his original draft of the Declaration, and George Washington even put in his will that all of his slaves would be freed after the passing of him and his immediate family. The real problem of this “social change” is it makes no consideration for what existing laws are being broken when SCOTUS makes a broad decision, overturning decades if not centuries of precedent. All the Dobbs decision did was put things back where they were in 1973. States can still legalize abortion if they want to. Since it is not mentioned in the Constitution, that is not under the authority of the National government, nor should there be any influence on Education without such an amendment. Remember that the 14th Amendment allows Blacks to be prohibited from voting, so long as the same number of Whites are prohibited. If the Constitution were properly upheld, there would have been no need for a 13th, 14th, or 15th Amendment, because the 5th Amendment plus Article I, Section 9 (which also outlaws blood libel) would have been all that was needed to outlaw slavery & segregation. It is the lovers of big government, like Roger B. Taney, Earl Warren, and the “Progressives” who have created issues that contradict the will of the founding generation.

    1. MLK called his I have a dream speech a dream for the very reason that United States will never be what was drafted fundamentally as government for egalitarianism and ethics.

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