The Reactionary US Supreme Court

us supreme court

The Supreme Court term which ran from October 2021 through June 2022 was among the most reactionary, far-reaching terms in memory. With six right-wing judges on the Court, we saw decisions that were gifts to corporate power and horrible for the well-being of people. Flinging aside precedent after precedent, the written opinions inserted rhetorical footholds for even more dystopian decisions that might be forthcoming.

In cases Dobbs v. Jackson Women’s Health (abortion), N.Y. Rifle Assn. v. Bruen (gun control), and W. Va. v. EPA (greenhouse gas emissions), which were all decided 6-3, the Court majority discarded Constitutional tests that had been in use for decades, only to substitute the standard of “history and tradition.” It’s a convenient test for people who do not want a new society that has any chance of progressing from the past, for those who have their sights trained next on LGBT rights, birth control, and interracial marriage. It’s the invocation of they who wish to bring a callous version of the Christian church into the Law.

History and tradition was the empty logic of the Court’s decision in Dred Scott v. Sanford: Black men had not been free before 1857, therefore they would not be free after 1857. The vacuum of thought is mind-boggling. At the same time, conservatives are in a war to rewrite and revise history and memory.

With fascism striding ever more openly into the political arena, those who celebrate the prospect of ruling without popular consent have long seen the Supreme Court as the fulcrum of that plan. The Court gives them victories that cannot win via the ballot box.

For example, W. Va. v. EPA was about an Obama-era rule directing power plants to utilize available renewable sources to meet demand first. Not only did Trump remove the rule, but power plants follow this practice already because they do not want to waste money. With no injury to redress, conservatives simply wanted the chance to shackle all of the Biden Administration agencies. In his majority opinion, Chief Justice John Roberts had to throw aside Chevron v. NRDC, which limited the Court to only questioning federal agencies over matters of “vast significance.” Roberts’ new standard for Supreme Court intervention is whether a rule “raises an eyebrow.”

The Court’s powergrab continued as five of the conservatives voted in Okla. v. Castro-Huerta, to trash a 120-year-old precedent in Lone Wolf v. Hitchcock and to assert that the Supreme Court, and not only Congress, will have the right to abrogate treaties. “As a citizen of a tribal nation, I feel violated,” said Elizabeth Reese, a citizen of the Nambé Pueblo, to NBC News. “[This will empower states] that are not designed to represent us and that have historically fought against us… It’s just an erosion of our ability to be the governments that we are.”

The ability of people, and particularly women, to self-govern, is at stake. While overturning Roe v. Wade, Justices Alito and Kavanaugh pontificated that this was not such a big deal, that they were just letting voters decide. Stunningly, President Biden and many Democrats reacted as though that were true, having no government response prepared except: “this fall, we must elect more senators and representative who will codify a woman’s right to choose.” But short of moving to a battleground state or district, people cannot vote harder. Moreover, the Roberts Court conservatives were already at work distorting elections in favor of the party that nominated them.

When John Roberts worked for the Reagan White House Counsel from 1982-86, Congress was considering an amendment to the 1965 Voting Rights Act which would prohibit election discrimination in impact, not just intent. Roberts had the job of crafting an argument against this change. Even though Reagan ultimately would decide not to publicly oppose the amendment, Roberts kept his misdeeds in reserve until, 40 years later, he was able to finally strike down key sections of the Voting rights Act, via Shelby County v. Holder (2013) and Brnovich v. DNC (2021).

As for the coming November election, the Court failed to give injunctive relief to southern Black voters in 2 cases that will be heard later this year, Merrill v. Milligan and Robinson v. Ardoin. The likely result is that, through gerrymandering, conservative Republicans will retain 1 more reliable vote in the House of Representatives from Alabama, and 1 extra vote from Louisiana. Close elections for U.S. Senator in states like Georgia and Wisconsin will also be tainted by laws that do not express bias explicitly but are designed to lower the turnout and success of Black and of liberal voters. Conservative justices say they empower democracy while what they really do is rig elections to ensure their rule will not be challenged. In October, they will hear Moore v. Harper, to decide whether state legislatures, many of which are gerrymandered themselves, can nullify both governors and state courts when determining state election law, including the matter of how Electors will be chosen.

An imperative becomes crystal clear: never allow the Republican Party to hold both Senate and Executive at the same time, at least until a conservative judge can be replaced by a Democratic president. The retirement decision of liberal Justice Stephen Breyer showed responsibility, since his being replaced by Ketanji Brown Jackson was nontrivial. For proof, one need only look to the racist and sexist “jackassery” on display during her confirmation hearing.

The difference Jackson can make on the Court is not limited to writing dissents that will offer a positive foundation for future rulings. Three justices who are nominally liberal may occasionally influence another justice to grant a case’s application for a hearing, a first step which requires the approval of 4 judges. If the nation were to be saddled with a 7-2 conservative court, an extreme bloc of 6 could expeditiously deny review of all the lower court decisions they wished to quietly let stand, out of the public eye. (Trump and McConnell were able to fill 53 of the 179 federal appelate judgeships, so this would be bad news.) Already, the Court’s reversal rate increased by 12% after the seating of Barrett, which implies that they hear more of the cases they want to overturn.

Because granting conferences are not public, we don’t know the “lineup” of every application for appeal to the Supreme Court. One exception is when 1 or more justices decide to publish a dissent. Thus, we do know that the liberal justices stood alone trying to review Hill v. Shoop (courts can make a “cafeteria-style selection” of evidence to determine intellectual disability, and from there, eligibility for execution) and Andrus v. Texas (Texas can ignore a prior ruling and execute a prisoner who didn’t have adequate counsel at trial). Not a single conservative would lift a finger to challenge Ramirez v. Guadarrama, which found that police could not be sued who tazed a man dousing himself in gasoline while knowing and having been told that would set him and a nearby house on fire.

Furthermore, 4 justices could not be found who would contradict Byrd v. Lamb (off-duty DHS officer may threaten and abuse civilians in a personal vendetta), Cope v. Cogdill (guard may watch an inmate strangle himself to death and not call for help), or Canales v. Lumpkin, a capital case whose prosecuting attorney even called it “an incredibly sad tribute that when a man’s life is on the line, about the only good thing we can say about him is he’s a good artist.” Now, since they cannot be appealed to the Supreme Court, all these cases stand!

The rightward tilt of the Court has emboldened corporations like Clear Channel, Monsanto, and Virgin America to bring petitions claiming billboard “speech” should not be taxed, EPA-approved pesticides should not have to be labeled as carcinogenic, and airlines should not have to comply with employee rest period laws. We don’t necessarily know how close these companies came to having their day.

Enough people see the Supreme Court as a crisis situation that grassroots organizations and some politicians are pressuring Biden to call for expanding the number of justices. (The U.S. has one of the smallest high courts in the world.) But there is a loud belief among business intellectuals that if Biden tries to add justices in order to unpack the Court that McConnell already packed, then he will stoke an electoral backlash; try and fail, and he gets backlash with no benefit. However, when Biden convened a commission to study these issues, some of its researchers found: “an attempted expansion— or even just the prospect of expansion— could lead the Supreme Court to be restrained in its jurisprudence… at least in the short term.”

Still, the Court’s conservatives would need to see expansion as credible. This is why law professor Samuel Moyn counters: “We should be disempowering the Court, through such means as limiting its jurisdiction.” Columnist Jamelle Bouie, who coined the slogan, “The Supreme Court is the last word on nothing,” points out that the Court claimed its own supremacy, in Marbury v. Madison; therefore Congress can enact law to limit the judiciary’s power, just as abolitionist Republicans did in the era of Dredd Scott. And yet, the early Republican Party professed a philosophy of liberation, at least in regard to race, and they ran elections based on the promise to bring the Court to heel. Daring to imagine the modern Democratic Party adopting such a strident call to action, like so many things, comes back to organization, communication among movements, and the working out of philosophy.

Buddy Bell is a labor activist in Indiana. He can be reached at [email protected].


Support Countercurrents

Countercurrents is answerable only to our readers. Support honest journalism because we have no PLANET B.
Become a Patron at Patreon

Join Our Newsletter


Join our WhatsApp and Telegram Channels

Get CounterCurrents updates on our WhatsApp and Telegram Channels

Related Posts

Join Our Newsletter

Annual Subscription

Join Countercurrents Annual Fund Raising Campaign and help us

Latest News