Is Trump’s Supreme Court now in crisis? The evidence mounts. Certainly, its recent judicial blitzkrieg has run roughshod over a century’s worth of settled law.
A woman’s right to get an abortion? Gone(at the very least, as a constitutionally protected civil rights). The 1965 Voting Right Act, which gave them life, is barely keeping their voting rights alive. So the state legislatures court ruledThe Supremes may not be able to control the uncontrollable availability of firearms, and so the bloodshed that will follow is inevitable. Climate catastrophe will only increase as the Supremes have. moved to disarm the Environmental Protection Agency’s efforts to reduce carbon emissions. Religion, excluded from the public arena since the nation’s founding, can now invade the classroom, thanks to the court’s latest pronouncement.
This renegade court is not done with its mischief. Affirmative actionIt is possible that you are the next to be cut. GerrymanderingIf the Supremes decide to exclude such practices from state court review, it could make American politics more open. Who knows what they will rule when every election that is not won by the Republican Party is liable to a lawsuit.
Donald Trump’s three appointments to the court — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — cemented in place a rightward shift in its center of gravity that had begun decades earlier. The court has been increasingly hostile to regulation of business ever since President Ronald Reagan appointed William Rehnquist in 1986 to the position of chief justice. This was despite its efforts to reduce Federal government power.
Don’t forget that it essentially appointed George W. Bush president in 2000 by ruling that Florida couldn’t conduct a recount of the vote, though it seemed likely that Al Gore would prevail and enter the Oval Office. And even after Rehnquist passed away, the court’s 2010 Citizens United decisionCorporations were granted the same freedom of speech rights as people. This further undermines democracy by removing restrictions on campaign contributions.
This march to the right was quite different from the earlier deliberations of Chief Justice Earl Warren’s court. The 1954 landmark was the best-known landmark of the Warren court. Brown v. Board of EducationPublic school segregation was struck down by a decision. It would also be the judicial center of a liberal order post-World War II that favored labor unions and civil rights, as well as government oversight of businesses and the welfare state.
Historisch speaking, however the Warren Court was not the exception. It was not the one Donald Trump cobbled together and presided over, if not legally, by Justice Clarence Thomas. The Supremes were made to be bad.
Constitution
As the Constitution, the Supreme Court was intended to be a bulwark of excessive democracy from the beginning.
In the years before the 1787 constitution convention in Philadelphia, the country was a chronically poor state. upheaval. Local insurrections against heavy taxes, land and currency speculators and merchant-bankers had raised questions about the security and integrity of private property. The ability to take over local legislatures was evident hoi polloiThey felt free to cancel debts and print paper money, stop evictions and remove elites from their positions of power.
Various impediments to this kind of “mobocracy” were baked into the Constitution, including the electoral college for presidential votes and the indirect election of senators by state legislatures (until the 17th amendment was ratified in 1913). Another such obstacle was the Supreme Court.
Founding Father James Madison typically saw that court as protection against “factious majorities” at the state and local level that might threaten the rights of property-holders. Fearing “passionate majorities,” he went so far as to propose a joint executive-judicial council with veto power over all legislation.
That idea didn’t work. Still, the principle of “judicial review” — the power of the court to have the last say on the constitutionality of legislation — although not made explicit in the Constitution was implicit in the way the founding fathers sought to reign in democratic impulses. Alexis de Tocqueville (19th-century French classic). Democracy in America, often recognized the special status afforded to judicial elites, describing these as America’s “high political class.“
At first, the Supreme Court’s services weren’t needed as a guardian of vested interests and its presence was muted indeed. It met in the Capitol basement and struck down two federal statutes between 1803-1857. (Compare this to the 22 it struck downBetween 1992 and 2002 alone.)
However, the court would establish a lasting reputation for conservatism through its 1857 scandal. Dred Scott decision. By a 7-2 majority, the justices declared all Black people — free or enslaved — to be non-citizens. They also ruled that a slave, regardless of whether he or her is able to move to a free nation, would still be the property the slave owner.
Dred Scott is generally considered to be the most egregious decision in the court’s 250 year history. However, the court’s basic orientation was to side with the propertied, not unpropertied; slave owners, not slaves; industrialists and financiers, rather than those who depended on them.
Gatling Gun Injunctions & Yellow Dog Contracts
After the Civil War, the court became more aggressive in protecting interests of the powerful. This was necessary because the status quo was being threatened by the powerless once more.
Reconstruction — the period immediately after the Civil War when the Federal government imposed martial law on the former Confederate states — empowered ex-slaves to militantly exercise their rights to full civil and political equality under the 14th and 15th amendments. Farmers in the Midwest, Great Plains and the South mobilized to defend themselves against predatory banks, railroads and commodity speculators. The confrontations that resulted in widespread sympathy in cities across the country saw industrial workers engage in pitched battles against their employers.
“Passionate majorities” needed chastening and the court met the challenge. It launched an era, much like our own, of “judge-made law” that would last from the late 1880s into the 1920s.
The Supremes declared an act of civil rights early on unconstitutional. Later, in Plessy v. Ferguson, they made segregation constitutionally legitimate via the doctrine of “separate but equal” and so helped restore elite white rule in the South. They also discredited the Populist movement’s hopes for an alliance of white rural poor against predatory landlords and banks by ensconcing segregation.
The populist fervor of the era led some state legislatures adopting laws regulating railroad rates, grain-elevator operator fees, and challenging corporate monopoly power over vital necessities of life. The court did not initially tread. carefully. But, soon enough, the justices reacted quickly and used the power to judicial review in order to void such laws. They concluded that, in the eyes law, corporations were indeed persons and so entitled to the very civil rights guaranteed to ex-slaves by the 14th amendment (“rights” presumably denied them under state regulatory statutes).
According to the justices, regulating business was like confiscating it. As one railroad lawyer had argued before the court, such regulation was “communism pure and simple.” From that same perspective, the court found a federal law establishing an income tax unconstitutional. (It took a 16th amendment, adopted in 1913, for the income tax to be made national law.
Industrial capitalism made its fortune by making millions of workers suffer from extreme poverty, overwork and danger, as well as disease and severe indignity. It would be a bloody affair, sparking more violent confrontations between workers with their bosses than anywhere else in western history. The workers started organizing together and their middle class allies were able to pass relevant laws for minimum wage, outlawing child labor, putting limits on the work hours employers could enforce, and making the workplace safer.
The Supreme Court’s justices, some of whom were once lawyers for the railroad, iron or steel, are now the Supreme Court’s justices industries, knew exactly what to do to respond to democratic challenges to capital’s prerogatives. While the right to strike might be honored in theory, the court issued injunctions to stop such strikes from happening so often that the era became known (after the early machine gun of that time) for its “gatling-gun injunctions.” That term was used in part as well because such rulings could be enforced by the Army or its state militia equivalents, not to mention the imprisonment and heavy fines often involved. One such bloody incident was a. encounter, William Howard Taft, then an Ohio judge, later president, and finally chief justice of the Supreme Court, complained that federal troops had “killed only six of the mob as yet. This is hardly enough to make an impression.”
These injunctions were often justifiable under the Sherman Anti-Trust Act (1890) to add salt to the wound. Originally designed to break up monopolies, it would be used far more frequently to bust strikes (and sympathy boycotts) on the grounds that they were “conspiracies in restraint of trade.” The court repeatedly enjoined “secondary boycotts“; that is, supportive actions by other unions or groups sympathetic to striking workers. It also struck down a Kansas statute that banned “yellow dog contracts” — agreements promising that they would never join a union that many workers were forced to sign on being hired.
Laws that sought to alleviate the harshness of working class life were also treated with similar contempt. New York state, for example, passed one banning cigar making in tenement workshops as a danger to workers’ health. The court ruled in the opposite and treated tenement dwellers as independent contractors who freely chose their way of living.
New York also attempted limit the hours bakers could be on duty to 10 per day and 60 per work week. They were forced to work 75 to 100 hours a week in poorly ventilated cellars in tenement bakeries, where the flour was dangerous to their lungs. They begged for a different outcome. In Lochner v. New York — named after the bakery owner who sued the state — they refused to recognize any threat to the well-being of bakers who, in the eyes of the court, had freely contracted to work on those terms. They were, after all, as free as their employers to strike an agreement or not choose not to work.
Freedom of contract was the dominant judicial orthodoxy at the time, ironically inherited from the long struggle against slavery. Free labor, unlike slavery, was able to enjoy equality of standing in any contractual relationship they had with their employer. Laws or unions which interfered with that “freedom” were rendered nugatory by the Court and it didn’t matter how obvious it was that the imputed equality between owners of capital and the men and women compelled to work for them was illusory.
Only laws protecting child laborers and women were able to pass. These workers were considered inferior and dependent and, unlike men, were not allowed to freely enter into contractual equality. Women faced the additional risk of losing their maternal role. Consider it a sign of just how dependent businesses had become on child labor, even though there was no federal law to regulate the ages and hours of children. workThe Supreme Court ultimately ruled against the appeal.
The Court v. People
By the turn of the twentieth century, the outcry against “judge-made law,” the willful manipulation of the Constitution to shore up endangered bastions of wealth and power, had grown ever stronger. There are also some recent developments scholars have found the court’s rulings then not as one sided as its reputation suggests, but contemporaries certainly didn’t share those doubts.
When the Supreme Court overturned an income tax law, a dissenting justice vividly described its decision as a “surrender to the moneyed classes.“
In a similar fashion, Supreme Court Justice Oliver Wendell Holmes broke off with his colleagues in 1905 when they ruled in The Lochner case, noting that “the 14th amendment does not enact Mr. Herbert Spencer’s Social Statics.” (Spencer was then the world’s foremost proponent of social darwinism and a staunch defender of free-market economics.) Louis Brandeis, the future Supreme Court Justice was able to cutly a few years later. noted that “to destroy a business is illegal. It not illegal to lower the standard of the working man’s living or to destroy the union which aims to raise or maintain such a standard. A business is property… A man’s standard of living is not property.”
Other voices were also being raised in alarm over the coming of a “judicial oligarchy.” Politicians from former president Theodore Roosevelt to perennial Socialist Party presidential candidate Eugene Debs began denouncing “the rogue court.” When he ran again for president in 1912 as the candidate of the Bull Moose, or Progressive Party, Roosevelt declared that the people are “the ultimate makers of their own Constitution” and swore that Americans would not surrender that prerogative to “any set of men, no matter what their positions or their character.” His rival for the party’s nomination, Wisconsin senator Robert LaFollette, typically offered this observation: “Evidence abounds that… the courts pervert justice almost as often as they administer it.” There existed, he concluded, “one law for the rich and another for the poor.“
Today’s calls for reform should be reminiscent of those made back in 1986. James Weaver, the populist presidential candidate, advocated for Supreme Court justices to be elected and lifetime terms to be abolished. A bill in Congress proposed that both houses of Congress should have the power recalling and removing a judge from office. Another demanded a super-majority of justices — seven out of nine — be required to invalidate a law. Roosevelt argued that there should be popular referenda on the court’s decisions. The Socialist Party demanded that the Supreme Court’s power to review the constitutionality of federal laws be done away with and all judges elected for short terms.
The court ruled until the Great Depression of 1930s. However, President Franklin Roosevelt passed new laws to regulate business and finance. He also created a national minimum wage, maximum-work-hours statute and legalized the right of union membership. This would change the balance of power together with another revolt of beleaguered workers in those years. Even then, the Supreme Court justices at first succeeded in nullifying key pieces of Roosevelt’s economic recovery legislation, while Democrats at the time, (as today), talked about adding new justices to the court.
The dominion of justice ended with the end, however. This was due to the national trauma of capitalism on the brink of collapse, the weight and changing public opinion as well as the aging of some of its justices. Lochner court.
“The Race Question”
During the long years of opposition to that court, little of the criticism touched on “the race question.” How to account for that? From the Gilded Age of the late nineteenth century to Roosevelt’s New Deal, Americans were preoccupied with “the labor question” (as it was then called) — that is, how to deal with the great social divide between capital and labor opened up by industrialization.
The silence regarding the more striking racial bias of Supreme Court speaks volumes about a national blindness in matters of racial injustice. Segregation was a settled law at the time. The words of a justice who decided the Plessy case, white supremacy was “in the nature of things.” (Sound familiar?) So, too, is the relative weakness of mass movements that address the race dilemma during the LochnerThe issue of court years was easy to overlook because it was so striking.
The Supreme Court’s original responsibility was, as James Madison once put it, to guard against the “tyranny of the majority.” African-Americans were, of course, a long-tyrannized minority.
But, there is more to this subject. LochnerThe court went AWOL even by its own standards. If the “minority” in question happened to be a corporation, it, of course, needed the court’s protection. Millions of ex slaves and their descendants were not so fortunate.
Eventually, a different Supreme Court, the one overseen by Chief Justice Earl Warren, faced the “race question.” Indeed, it expanded civil rights and civil liberties generally by making racial segregation illegal in public schools, increasing the constitutional rights of defendants, outlawing state-sponsored school prayer, and creating the groundwork to legalize abortion.
Times had changed. Civil rights for African-Americans (about which Roosevelt’s New Deal did little) became an increasing concern during and after World War II. The issue was being pressed harder by a growing number of civil rights organizations and a powerful labor movement. The Warren Court’s celebrated 1954 ruling was already a landmark. Brown v. Board of Education decision, race had become a “question,” just as the “labor question” had in the New Deal era.
Before then, pressure alone, however muscular, had not produced a shift in the high court’s approach as the LochnerThis is the court that was so clearly demonstrated. After all, segregation was a way of living that was endorsed by local white legislatures. Southern commercial interests in particular — plantation owners, textile manufacturers, and raw material producers — depended on it.
In a culture infused with the New Deal’s multi-ethnic sympathies as well as cosmopolitanism, segregation became more repellent than ever. In beginning the dismantlement of legal segregation, the Warren court would not, in fact, threaten the country’s central institutions of power and wealth which, if anything, had by then come to find American-style apartheid inimical to their interests.
Justice is supposed not to be political, but this has never been true. What was once termed the “counter-majoritarian” mission of the court — to discipline “passionate majorities” — produced great wrongs in the era of the gatling-gun injunction as had also been true earlier. However, the Warren court was a rare exception. It achieved the exact opposite results despite using the same constitutional logic (the civil Rights enshrined under the 14th amendment). LochnerMass movements for justice and equality were stopped by the court.
Today’s Supreme Court is more than Donald Trump’s creation. It’s the result of a long counter-revolution against the political, economic, and cultural reforms of the New Deal, as well as of the labor, civil rights, women’s, and gay liberation movements of the last century.
Sadly, those are the “passionate majorities” the court now seems all too determined to squelch and in that it stands in a long American tradition, though one most of us had forgotten in the Warren years. The Supreme Court’s tyranny must end if the country is to live up its democratic and egalitarian promises.
