The U.S. Supreme Court is making a U-turn on civil rights. Its conservative supermajority of six justices is poised to send constitutional freedoms back a half-century. The 2021–22 docket is full of cases cherry-picked to accelerate this rollback.
Polls show that trust in the high tribunal is at its lowest ebb. Many now see it for what it has always been: a political body created to defend the powers-that-be.
The court is biased and bought. It operates with little constraint and is rife with out-front politicking and conflict-of-interest practices. Unlike all other judiciaries, it has no code of ethics. Two justices — Brett Kavanaugh and Clarence Thomas — were confirmed despite evidence of sexual misconduct.
Trump’s three extremists — Neil Gorsuch, Kavanaugh, and Amy Coney Barrett — are leading a Christian right charge through the Constitution and previous legal stances. Their attitudes are uniformly pro-big business, white supremacist, and for traditional family values and religious exceptionalism.
Moderate justice Breyer will retire in June 2022. President Biden nominated a federal appeals judge, Ketanji Brown Jackson, to replace him. If confirmed, she would be the first Black woman on the high court. But adding her to the bench will not alter the balance of power.
Dark money transforms the court. The modern court is the product of intense organizing to reverse the gains of the 1960s social movements. A tangled web of millionaire funders and reactionary advocacy agencies worked for decades to ensure arch-conservative dominance of the highest legal body in the land. An example is the Independent Women’s Forum, which today is massing opposition to Biden’s nominee. The origin of the Independent Women’s Forum stems from efforts to discredit Anita Hill when she charged Clarence Thomas with sexual harassment.
Most influential is the Federalist Society, whose mission is to counter liberalism in the world of law. It has built an ultra-right pipeline to the court. Former co-chair Leonard Leo drafted Trump’s list of candidates. All six supermajority justices are present or former members.
Powerful, mega-rich reactionaries pour funds into the Federalist Society. Secret dark money is the lubricant in the nomination process.
Precedents at risk. Stacking the court is about to pay huge dividends for the extremists.
Long the bane of the fundamentalists, Roe v. Wade, the landmark abortion ruling, is on the chopping block. The justices already broke precedent to let stand a Texas law that is forcing women to cross state lines to seek the procedure. Meanwhile, the decision for the Mississippi-based case, Dobbs v. Jackson Women’s Health, expected in June, is likely to obliterate protections for bodily autonomy (see “Fighting to Save the Right to Abortion” at socialism.com).
Racists have worked to reverse the gains of the Voting Rights Act since its passage in 1965. With the help of this reactionary bench, they are continuing to disenfranchise people of color. Most recently, the justices upheld Alabama’s gerrymandered congressional map that disadvantages its Black residents. And last year, in Brnovich v. DNC, they upheld two Arizona laws that limit access for Black, Latinx, and Indigenous voters. These bigoted judgments serve to escalate white supremacy.
In two combined affirmative action cases, Students for Fair Admissions v. Harvard College/University of North Carolina, the court has indicated it is willing to revisit the question of race-conscious college admissions. This equity tool puts higher education within reach for people of color and women. The verdict will impact provisions like Title 9, which addresses discrimination in education based on sex.
With extreme Catholic Amy Coney Barrett on the bench, the justices have prioritized questions pushed by the Christian right for decades. A Covid-era ruling protects plaintiffs who seek an exemption from the law on religious grounds. In 2020, they approved the use of public funds for religious education.
Other cases show the rightward bent of the justices. They sided with the Biden administration in upholding the secrecy of a CIA black site, thus denying a prisoner seized in Pakistan access to information about his torture. They bolstered the death penalty when they reinstated execution for the Boston Marathon bomber. They are expected to expand to public venues the right to carry concealed handguns. They temporarily blocked Biden from eliminating the “Stay in Mexico” policy enacted by Trump. It keeps asylum-seekers across the border until their case is heard. A permanent decision is pending.
The power of protest. Unfortunately, the reshaping of U.S. law by the Supreme Court is happening mostly without an organized hue and cry. The secrecy of the transformation is partially to blame. The supermajority increasingly uses the “shadow docket.” This procedure has no oral arguments and no explanation of opinions. It was previously reserved for emergencies.
Protest is alive on issues like immigrant and voting rights, and access to abortion, but it is too often disjointed or state-based. Some Democrats are floating the idea of restructuring the court. But reliance on the Democrats, who are part of the status quo, is no answer.
History shows that social justice agitation is the driver of legal advances for the marginalized. Mass organizing against Jim Crow resulted in the 1954 Brown v. Board of Education ruling in which the Supreme Court struck down school segregation. It declared that seating on public transportation could not be race-based as a result of the 1955 Montgomery Bus Boycott. The 1973 Roe v. Wade decree, made by a conservative majority, came amidst the ferment of the feminist movement. The 2015 Obergefell v. Hodges verdict, which legitimized same-gender marriage, came after a massive campaign by the LGBTQ+ movement.
Pressure gets the attention of the bench. That is why Radical Women founded the National Mobilization for Reproductive Justice and has been working with other grassroots organizations to preserve abortion rights (see reprojusticenow.org).
Young activists working with veterans from earlier struggles can pave the way forward. It’s time for the majority who oppose the white patriarchal vision — feminists, anti-racist organizers, unionists, LGBTQ+ activists, and others — to unite and raise hell in the court of public opinion.
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