There has rightly been enormous outcry over the nomination of Brett Kavanaugh to the Supreme Court. He was been credibly accused of sexual assault and lied about it repeatedly under oath. His right wing views will allow conservatives on the bench to inflict incredible suffering on ordinary people, unchecked for decades.
While we share these concerns with progressives, socialists have a more fundamental critique: The Supreme Court is an irredeemable, undemocratic organization that has no place in a functioning democracy.
Progressives and liberals wax nostalgic for the Warren Court, which brought many very liberal, landmark decisions on issues such as desegregation, voting rights, one-person-one-vote, and free speech. But the Warren Court was an aberration–throughout its history, the Supreme Court has been less Brown v. Board of Education and more Dred Scott v. Sanford.
One of the readings for today was a roundup of terrible Supreme Court decisions. These included:
- Dred Scott v. Sanford, in which the Supreme Court extended slavery to free states, provided the slave was purchased in a slave state
- Buck v. Bell, which allowed states to practice eugenics
- Korematsu v. United States, which upheld the mass internment of Japanese immigrants
- Plessy v. Ferguson, which basically undid overnight the many (though incomplete) accomplishments of post-Civil War Reconstruction
- Multiple decisions in the 1880’s on segregation which took 80 years to undo
- Lochner v. New York which struck down overtime laws
- Hammer v. Dagenhart which struck down child labor laws
Kavanaugh is not an aberration, the Warren Court was. The Supreme Court has been for the most part a bastion of the right wing. Obviously, the vastly disproportionate victims of the Supreme Court have been African Americans, though many appalling decisions have been colorblind.
A political system in which nine unelected people get to invalidate any action of the democratic system is not a democracy. This is particularly true because two are being nominated by Trump and confirmed along party lines in the Senate. Trump did not win the popular vote; because each state, no matter the population, gets two Senators, more voters actually voted for Democratic Senate candidates than Republicans. So a man who would not be able to win his seat in an election is being nominated by a man who lost the popular vote and confirmed by a body representing a minority of votes.
Crucially, for progressives, the Supreme Court is a form of politics without struggle. As long as ideologues don’t get into the court, the best arguments will carry the day. Rather than winning elections to keep the Republican agenda from being enacted, we can instead rely on the Supreme Court to simply overrule them. Rather than convince a majority of voters of the merit of their ideas, only nine people on the Supreme Court need to be convinced. Socialists know that progress only comes from organizing ordinary people, not convincing nine unelected elites.
After striking down overtime law and child labor laws, the Supreme Court rubber stamped the New Deal not because they were suddenly persuaded it was Constitutional, but because of an explosion of membership in left-wing organizations like our own. They feared the consequences if they struck down the New Deal, so they broke with precedent and started ruling labor and other laws Constitutional–something unthinkable even a few years prior.
- A reading for today suggested court packing–once in power, the Democrats should expand the number of justices and fill the new seats with liberals, and to establish term limits (so each president always got one nomination). Is this a good solution?