Anthony Kennedy’s recent retirement as a US Supreme Court Justice gives President Trump the opportunity to name a replacement that the Republican majority in the Senate will no doubt confirm. This will cement a far right majority on the Court for the foreseeable future.
This development has brought joy to American religious fundamentalists who envision the new Court majority overturning Roe vs. Wade, the decision that guarantees women the right to abortion, establishing new limits to gay rights, and widening permission for otherwise discriminatory behavior on the basis of religious freedom. Liberals fear that the Court will outlaw affirmative action for minorities in university admission and employment, will further restrict labor unions, and continue to permit ever more draconian efforts by Republican state legislatures to limit voting rights in ways that will mainly disenfranchise minorities and young people.
Those hopes and fears likely will be realized, at least in good part, sooner or later. American courts can only issue decisions when a case, a dispute between two parties, comes before it. Often such cases make for poor vehicles for significant decisions, and in any case they have to be heard by two layers of lower courts before they can reach the Supreme Court. Thus, any major decision comes only at the end of a years long process of trial, appeal, and finally consideration by the Supreme Court.
The long-standing conservative majority on the Supreme Court, and its coming deepening reflects three facts: First, Republicans will have controlled the presidency for twenty-four of the forty years from 1980 to 2020. Second, right wing justices have been far more strategic about retiring when like-minded Republican presidents held office. Liberal justices are much more self-centered and far less strategic in their retirement decisions. For example, Thurgood Marshall, the great civil rights attorney turned justice, refused to retire during a Democratic presidency and thus was still on the Court when he became mortally ill. This allowed George H. W. Bush to name ultra reactionary Clarence Thomas as his successor. Ruth Bader Ginsburg, now 85 years old and who has been treated for both colon and pancreatic cancer, did not retire during Obama’s presidency. Actuarially, she has a significant chance of dying while Trump is president, which would give him a third appointment to the Court. Third, the Court now would have a liberal majority if Senate Republicans hadn’t taken the unprecedented step of refusing to consider Obama’s nomination of Merrick Garland to the Supreme Court in 2016.
If we step back from the present moment, and even from the rightward movement of the Court over the past forty years, to encompass all of US judicial history, we can see that the Supreme Court has resumed its traditional role of protecting capitalist interests and allowing political parties to manipulate elections to remain in power. Until Franklin Roosevelt managed to appoint a majority of justices, the Supreme Court repeatedly ruled that economic legislation, at both the Federal and state levels, were unconstitutional limits on individuals’ property rights and on their rights to enter into contracts. Thus, laws limiting working hours, banning child labor, imposing health rules, or limiting financial manipulation were struck down. Similarly, the parties that controlled states were allowed to have legislative districts that were drastically unequal in size. Such American ‘rotten boroughs’ ensured rural control of states even when large majorities lived in cities. Laws that prevented blacks from voting or that imposed segregation were never overruled until Roosevelt and his successors through Johnson changed the makeup of the Supreme Court.
The legal landscape Americans take for granted today was the result of a political shift that went from the 1930s through the 1960s, the same decades of unprecedented income equality and the decades in which almost all US social welfare programs were instituted. The Court decisions of recent decades and the ones we can expect in coming years will return US legal rules to the era of unchallenged capitalist domination of workers. While, the sort of overt segregation and legal racism that was allowed until the 1950s won’t return, we can expect increasing legal approval of efforts to limit African Americans’ ability to vote and to grant legal permission for private discrimination against blacks, gays, and other minorities.
American liberals made a fundamental strategic mistake in relying on progressive judges rather than electoral campaigns to win rights and change state policies. Abortion is the key example. Some states had legalized abortion and more were on their way to doing so when Roe vs. Wade preempted the political process in 1973. That was without doubt a dramatic victory for women, but it had terrible political effects. Catholics and Protestant fundamentalists, who were split between the two parties before then, increasingly shifted to the Republicans as that party became committed to restricting or ending abortion rights while the Democrats championed women’s rights. That permanently disadvantaged Democrats in elections ever since. Further, the Court’s decision in Roe was seen by many, though not most, Americans as an illegitimate effort to foist the justices’ political preferences on the public. Legislative defeats, however bitter, have a legitimacy that court decisions do not.
We now will see the political logic of Roe reversed in favor of the Democrats. As the Court takes away rights and limits the government’s ability to regulate economic activity, a growing portion of the public will pay attention to the Court and will see it, accurately, as an arm of the Republican right rather than a neutral upholder of the Constitution. We can expect that voters harmed by coming Court decisions will shift to the Democrats and will be more likely to vote in the elections for the Senators and presidents who will determine future appointments.
Supreme Court appointments are political choices, and those justices’ rulings are just one step removed from politics as well. Just as voters reacted against the liberal decisions of the 1960s and elected Nixon, so might they turn to the Democrats to undo the current and future efforts by the justices to empower capitalists, religious bigots, and party bosses.
