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.