Last week, Donald Trump was confronted with a new accusation of sexual assault (Trump, as always, denied it), and then delivered a bizarre speech at the National Archives, demanding ideological conformity in public-school curricula through what he described as “patriotic education” that “celebrates the truth about our nation’s great history.” Instead of facing scrutiny or scorn for these latest outrages, he has been awarded yet another opportunity to select a Justice to serve on the Supreme Court. Trump barely concealed his delight at the chance to replace Justice Ruth Bader Ginsburg, tweeting at the Republican Party, the morning after Ginsburg’s death, “We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!”
It is simply unconscionable that Trump—who lost the popular election by millions of votes; who was impeached last December, for abuse of power; and who has openly espoused racist, xenophobic, and sexist ideas, while also encouraging political violence against his perceived opponents—will, with voting in the Presidential election already under way, select a third candidate for a lifetime appointment to the Supreme Court. Of course, no one has forgotten that, after Justice Antonin Scalia died in February, 2016, the Republican Senate Majority Leader, Mitch McConnell, refused to hold a Senate hearing for President Obama’s nominee to the Court, Merrick Garland, effectively blocking Obama from choosing Scalia’s replacement. Now, with McConnell still in power, there is little doubt that the Senate will hold a confirmation hearing for Trump’s candidate. Not only does the likelihood of another Trump appointment shred the illusion that the Supreme Court stands above the political rancor of the executive and legislative branches; it weaponizes the Court, by gifting Trump one more opportunity to limit the political rights of the minority populations that he disparages and despises.
Trump’s influence on American jurisprudence has been the quietest and most successful part of his destructive Presidency. He has appointed more than two hundred judges to federal courts, surpassing almost any other recent President at this point in their tenure. He has also made sure that the judges he has selected for these lifetime appointments are among the youngest ever—on average, forty-eight years old—insuring the longevity of their impact. And, with eighty-five per cent of his appointees being white, he has cemented the gross mismatch between the federal judiciary and the public. This latest development should certainly call into question the haphazard rules and procedural tricks that allot Trump the power to decisively tip the scales of justice in his favor. Pressed further, one might also ask: Why should the Supreme Court, an unelected body that is richer, whiter, and more male than the United States is, continue to have such outsized power in the lives of ordinary people?
The insistence that the Supreme Court is not a political body is a principle of high folly in American politics. Just last fall, Chief Justice John Roberts lamented the perception that the Court was politicized, saying, “When you live in a polarized political environment, people tend to see everything in those terms. That’s not how we at the Court function, and the results in our cases do not suggest otherwise.” In reality, appointments to the nation’s highest court reflect the current balance or imbalance of political power, making it impossible to neatly untie them from the political bodies that determine who sits on the Court and who does not. Anyone who doubts this need look no further than the partisan ragedisplayed by Justice Brett Kavanaugh during his Senate confirmation hearing, in late 2018. From blaming an inquiry into his personal history on “revenge on behalf of the Clintons” to proclaiming “What goes around, comes around” to Senate Democrats, the future Justice arrogantly flexed raw Republican power.
Moreover, as the branch of government that is least accountable to the American public, the Supreme Court has tended, for most of its history, toward a fundamental conservatism, siding with tradition over more expansive visions of human rights. Indeed, at the most significant moments in African-American history, the Court reflected the most reactionary elements of the culture in its efforts to abridge, degrade, or simply eliminate the rights of African-Americans. In 1857, it famously ruled, in Dred Scott v. Sandford, that African-Americans were not and could not be citizens of the United States; Chief Justice Roger Taney concluded that African-Americans were “so far inferior, that they had no rights which the white man was bound to respect.” It took a civil war and its revolutionary upending of American society to reverse the Supreme Court’s damaging ruling, leading to the passage of the Civil Rights Act of 1866, which guaranteed to all, including the formerly enslaved, the same rights that are “enjoyed by white citizens.” The Fourteenth Amendment, guaranteeing birthright citizenship to all and creating the legal principle of equal protection before the law, was built on the foundation of the Civil Rights Act of 1866. In combination with the Thirteenth Amendment, which abolished slavery, and the Fifteenth Amendment, which prohibited racial discrimination as an obstacle to voting, these acts of Congress were intended to elevate African-Americans into the role of citizens, equal before the law and empowered by the ballot to shape the world in which they lived.
But, within a generation of the passage of this historic legislation, the Supreme Court slowly and assuredly denuded that legislation’s most potent power: constructing the personhood of those who were once property. The Court’s decisions in the aftermath of Reconstruction reduced the amendments to their most literal meanings, ignoring their expansive conceptions as means to protect the rights of newly freed people and guarantee them—indeed, all people born in the United States—the privileges and protections of U.S. citizenship. In 1883, the Supreme Court heard a group of cases that had been bound together to test the constitutionality of the Civil Rights Act of 1875, which prohibited discrimination in hotels, trains, and other public accommodations and “places of public amusement.” In an 8–1 decision, the Court ruled that it was legally permissible to ban African-Americans from public accommodations and decried African-American demands to participate in the public sphere as “special” rights to which they were not entitled. Though the stench of slavery still polluted the air, the Court offered willfully ignorant proclamations of color blindness. In response to African-Americans’ demands for equality, the majority opined, “There must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected.” Of course, “other men” had not been enslaved, nor subjected to savage acts of violence and harassment, nor banished from public life as an affront to their claims of citizenship.
On the eve of the twentieth century, the Court’s ruling in Plessy v. Ferguson transformed the regional injustice of Jim Crow into the national lie that separate could be equal, codifying the racial apartheid of the South as the law of the land. For decades, freed African-Americans had worked arduously to define the meaning of Black citizenship; the retrograde Court worked quickly to foreclose it. In doing so, it eviscerated, for millions of African-Americans, any notion that justice is blind, compelling one observer to describe the Court as the “grave of liberty.”
The accomplishments of the Court while led by Chief Justice Earl Warren, from 1953 to 1969, stand out as exceptions in the body’s long history of regression. But even the decisions from this period that we now laud for upholding or defending freedom were made within a larger climate of social unrest or revolt, and were often aimed at reversing damage that the Court had done in the first place. The Court is celebrated for its historic decision in Brown v. Board of Education, in 1954, which banned segregation in public education, but it was merely undoing policies and practices that it had set in motion with Plessy. It was also responding to the broader dynamics of the emerging civil-rights movement, which threatened to embarrass the United States on the global stage just as the country was attempting to project itself, during the Cold War, as a beacon of democracy. In 1952, the Truman Administration submitted an amicus brief to the Supreme Court encouraging it to rule against segregation. As the brief noted, “The United States is trying to prove to the people of the world of every nationality, race and color, that a free democracy is the most civilized and most secure form of government yet devised by man. . . . The existence of discrimination against minority groups in the United States has an adverse effect upon our relations with other countries. Racial discrimination furnishes grist for the Communist propaganda mills.” The Brown decision was a public indicator of progress, but its decree was quickly undermined when, the following year, the Court prescribed that school desegregation be undertaken with “all deliberate speed.” Without a directive that the ruling should take effect immediately, the South was provided legal cover to drag its feet, as the racist “massive resistance” to school integration began to take hold.
At other moments, the coercive power of a mass social movement compelled the Court to act in proactive, even radical, ways. Jones v. Alfred H. Mayer Co., a landmark case addressing housing discrimination, was decided in June of 1968, just months after a series of uprisings catalyzed by the assassination of Martin Luther King, Jr. The decision surpassed the Fair Housing Act, which was signed that April and set to be phased in over a two-year period, by making racial discrimination in the buying, selling, renting, or financing of housing illegal, effective immediately. The majority’s ruling looked to the Thirteenth Amendment and the Civil Rights Act of 1866, and declared that housing discrimination, regardless of whether the source was public or private, was a “badge and incident” of slavery. Justice Potter Stewart, writing for the majority, compared racial discrimination in housing to the “Black Codes” enacted at the end of the Civil War, saying that “when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.”
But, just six years after the Jones decision, the Court, led by a new Chief Justice, Warren Burger, stymied the progress of civil rights. In Milliken v. Bradley, the Court was asked to decide if Detroit suburbs were required to include Black children from the city in a metropolitan-area-wide school-desegregation plan. With the Black movement in retreat, and the political winds moving decidedly to the right—characterized by then President Richard Nixon’s description, in 1971, of “fair housing” as “forced integration”—the Court came to a remarkably different conclusion than it did in 1968. Burger, writing for the majority, claimed that racial segregation in Detroit was “caused by unknown and perhaps unknowable factors,” and concluded that there was no evidence that “governmental activity” had played any role in the “residential patterns within Detroit.” The Court had not forgotten its Jones ruling, in which it plainly described the existence of segregation and linked its origins to state action and private discrimination. Instead, the changing political climate cast similar facts in a different light. It was also a different Court. By the end of his disgraced Presidency, Nixon had appointed four Justices, conjuring a conservative majority that stemmed the momentum from the “rights revolution” for decades.
The Court retains this penchant to shape politics, even with issues seemingly settled by law. Take voting rights. African-Americans in the South finally secured unobstructed access to the ballot box with the Voting Rights Act of 1965, which was intended to end the shameful legacy of race-based voter suppression in the region. But, in fact, the question was not settled. In 2013, Chief Justice John Roberts wrote the majority opinion for the landmark reversal in Shelby County v. Holder, which ended the act’s key enforcement provisions. Just three weeks before George Zimmerman was acquitted of the murder of Trayvon Martin, compelling Alicia Garza to utter the phrase “Black lives matter” for the first time, Roberts argued that these civil-rights protections were no longer necessary because “our country has changed.” Predictably, states across the South began to implement new voting restrictions that overwhelmingly affected African-Americans. Alabama announcedthat it would require voters to present photo identification, and then, in Black-majority counties, proceeded to close Department of Motor Vehicles offices.
Even when the Court has ruled in ways that appear to be in the interest of minorities or socially and economically marginalized populations, its decisions can be ephemeral, susceptible to partisan shifts, while creating the dangerous illusion of permanence. The Roe v. Wade decision, in 1973, was made in the midst of the women’s-liberation movement, in which reproductive freedom and access to abortion were central demands. In subsequent decades, the changing political climate, including the strategic decisions of liberal feminist organizations to focus their resources and organizing on electoral politics, and not on the street-level mobilizations that won the right to abortion in the first place, has contributed to the erosion of support for abortion rights. The idea that sympathetic politicians were the key to maintaining access to abortion missed the historical lesson that pressure generated by social movements has the greatest potential to overcome the inherently conservative bent of the Court. We now live with the reality that a man accused of sexual assault by multiple women will have the power to make life-altering decisions about our lives, including whether we will retain the right to a legal abortion. The fluidity with which rights can be bequeathed and taken away, in fact, reduces rights to privileges. In a truly democratic society, civil rights should not be contingent on a fortuitous combination of Supreme Court Justices.
The events of this tumultuous and tragic year, from the ravagesof the coronavirus pandemic to the fresh uprisings against racist police violence, have compelled a national reckoning like no other, opening new public, mainstream conversations about how we might remake this country more equitably. Those discussions have been most pointed when trained on the destructive role of police in Black and brown communities. Activists have advanced an unpopular but compelling argument to “defund the police” and redistribute law-enforcement budgets to programs that might more effectively respond to social and economic crises in poor and working-class communities. We have also seen a growing demand for some form of universal or guaranteed health care, reflecting deepening frustrations with a health-care system in which access is largely contingent on employment and, even then, is deeply constrained by costs. For-profit health care was unpopular before, but now, as millions have lost their jobs because of the contracting pandemic-era economy, it seems as cruel as it is unjust. One measure of the mounting discontent with the rapacious inequality that defines American society is the number of people who have warmed to the ideas of socialism and the redistributive economics at their core. In a Pew Research poll conducted last year, forty-two per cent of Americans had a positive view of socialism. Months later, Gallup found that young adults’ attitude toward socialism is even rosier, with nearly half viewing it positively. In moments of acute crisis, people question the norms and institutions of a social order that gestated the problems in the first place.
Trump’s constitutional power to manipulate the Court in his favor has compelled mainstream elected officials to make dramatic demands that the Supreme Court change. The former Attorney General Eric Holder recently described the conservative majority as “illegitimate,” because of the Senate’s refusal to confirm Merrick Garland, and said that, if Republicans move forward with confirming Ginsburg’s replacement, and Democrats win the Presidency, “we need to think about court reform. And, at a minimum, as part of that reform package, I think additional Justices need to be placed on the Supreme Court.” Senate Minority Leader Chuck Schumer and House Speaker Nancy Pelosi have not ruled out Court-packing, should the Republicans succeed at filling Ginsburg’s seat before the election. They have also said, in Pelosi’s words, that they will “use every arrow in our quiver” to block Trump’s nominee. But neither Schumer nor Pelosi has said what exactly that means. Joe Biden, for his part, called on Republicans in the Senate to “follow your conscience” as regards the Court. “Don’t vote to confirm anyone nominated under the circumstances President Trump and Senator McConnell have created,” he continued. “Don’t go there.” But, sure enough, Mitt Romney—the lone Republican who voted to remove Trump from office, for corruption, during the Senate impeachment trial—pledged to vote to hold a Senate hearing for the President’s nominee, all but assuring the candidate’s ascension to the Supreme Court. Clearly, there is no honor among thieves, and the most troubling part is that Biden thought there was.
The Republican Party’s provocation to rapidly replace Ginsburg has already been met with thousands of people assembling at the steps of the Supreme Court. In a sharp rebuke to Trump, at least one Times and Siena poll—of residents in North Carolina, Arizona, and Maine, taken before Ginsburg’s death—found that fifty-three per cent of those asked think that Biden should pick the next Justice. A nationwide Reuters and Ipsos poll conducted after Ginsburg’s death found that sixty-two per cent of those asked think the winner of the November election should pick the new Justice. There is popular recognition that Republicans are attempting to preserve the political influences of a disgraced President. But, for those who oppose a Trump nominee, the equivocating and fractured Democratic Party is an unreliable ally in what will be a bitter struggle. Representative Alexandria Ocasio-Cortez said that Democrats in Congress must “commit to using every procedural tool available to us” to insure that the vacancy is filled by the next President, including impeaching Trump or Attorney General William Barr, but many of her colleagues would likely oppose such tactics. Senator Tim Kaine, of Virginia, argued that it would be “foolish” to consider impeaching Trump or Barr, and went on to say that he was asking “Republicans to be true to their word,” apparently holding out hope that they would relinquish the opportunity to reshape the Court in their own image.
Those with the most to lose from a reactionary Trump Court have the least access to the levers of power that could slow this fast-moving process. But they can still attempt to interrupt it with popular protest and resistance. Even if popular resistance is not successful in stopping Trump’s nominee, it will be crucial in the long, ongoing struggle to expand the rights of the people of the United States. As the historian and writer Howard Zinn, whom Donald Trump disparaged in his speech at the National Archives, once wrote,
Knowing the nature of the political and judicial system of this country, its inherent bias against the poor, against people of color, against dissidents, we cannot become dependent on the courts, or on our political leadership. Our culture—the media, the educational system—tries to crowd out of our political consciousness everything except who will be elected President and who will be on the Supreme Court, as if these are the most important decisions we make. They are not. They deflect us from the most important job citizens have, which is to bring democracy alive by organizing, protesting, engaging in acts of civil disobedience that shake up the system.
This doesn’t mean that it is unimportant who wins the Presidency or who is appointed to the Supreme Court. What it does mean is that ordinary people are not powerless to challenge the political and economic élite who have such disproportionate authority over our lives. But our power is often located outside of the institutions of tradition and influence. It is through acts of solidarity and struggle that we have been able to secure our rights and liberties in the United States, and, from the shape of things to come, that is how those rights and liberties will have to be defended. This means building movements to pressure an increasingly right-wing Supreme Court, making it more difficult for that body to further usurp the rights of regular people. It also means calling into question the fundamentally undemocratic nature of the Court. If Trump is successful in adding another right-wing Justice, he will only continue to erode the Court’s legitimacy, adding further evidence that it can be brazenly used to achieve what could not be accomplished through legislative means. The multiplying failures of our existing society have led many of us to reconsider institutions, policies, and practices that have continued to reproduce racial and economic inequalities. In this moment of exalting uprisings and reëmergent social movements, we cannot overlook the disturbing history of the Supreme Court and its regressive role in American society.
What do we do about the Court? There is an obvious and pressing need now to do whatever is politically permissible in stopping Trump from further distorting its composition. But, beyond that, there is also a need to make it part of our national reckoning with the history and traditions of racism in the United States. It is long overdue to end the Court’s undemocratic role in U.S. society.
[Originally published on September 25, 2020 via The New Yorker]