When Anthony Kennedy announced he was retiring from the U.S. Supreme Court, the liberal press and middle-class left let out a howl — President Donald Trump is going to remake the court so deeply reactionary that our social rights will be irrevocably gutted. They desperately hope to step up their “resistance” to the president and his nomination of long-time Judge Brett Kavanaugh, or at least put off the confirmation vote until after this fall’s midterm election.
The Democrats dream of a sweep in November, though they’re enmeshed in a passionate debate over what type of candidates to field. Some have gone gaga over Democratic Socialists of America member Alexandria Ocasio-Cortez’s Democratic Party primary win in New York. Others respond that candidates like her are a ticket to disaster in November. Either way, NOW President Toni Van Pelt claimed July 10, “We are on the threshold of the most consequential Congressional elections in modern times.”
The working class has no horse in the race for which judges sit on the Supreme Court, or, for that matter, on which bourgeois political party comes out ahead in the election. The court exists to protect the interests of the propertied owners. Changes to its composition will not offer us significantly better or worse conditions. Our starting point has to be relying on independent working-class mobilizations to fight for our rights along the road to overthrowing capitalist rule and putting workers and farmers in power.
The Supreme Court is used by the ruling class as an arbiter of conflicts over how it rules. But it faces restrictions, written into the Constitution that was marked by the impact of the revolutionary war that overthrew the British Crown and subsequent class struggles that led to the Bill of Rights and the 13th, 14th and 15th amendments, adopted out of the second American Revolution that overthrew slavery.
These codify protections against government attacks that working people have used, need today and will use again in the years ahead as class battles intensify in response to the deepening crisis of capitalist rule. These include the right to freedom of speech and association, to bear arms, against denial of due process of law, against unreasonable search and seizure, and for equal protection of the law for all. Class conscious workers demand these rights are upheld and we rely on our own capacity to organize and struggle to ensure they can be used.
This question was addressed by Socialist Workers Party leader James P. Cannon in 1937, when President Franklin Roosevelt tried to expand and pack the Supreme Court with judges who agreed with him. It is through the development of working-class struggles, Cannon argued, that we take steps forward. “A ‘liberal’ Supreme Court can’t and won’t aid these struggles,” he said. “And a ‘reactionary’ Supreme Court can’t stop them.”
Rights are won in the streets
It took disciplined mass struggle by millions to overturn Jim Crow segregation, not some ruling by the Supreme Court. It will be workers’ capacity to organize, to overcome the divisions the rulers impose on us, and to develop our fighting capabilities and class consciousness that will put us in the best position to defend ourselves.
Before his death in 2016, Supreme Court Justice Antonin Scalia accurately pointed to the narrow social composition of the Supreme Court. But no change to the court’s composition will alter which class it serves. The court will make all its decisions in accordance with the rulers’ reading of what the relationship of class forces permits. This is why justices have shifted their rulings on questions of Black and women’s rights and on the right of gay people to marry.
The New York Times editorialized June 27 that women’s right to abortion was preserved “solely on the strength of Justice Kennedy’s vote,” and would face a severe threat from whoever Trump replaced him with. But abortion rights are under attack in state after state today and have been for years, under Democratic and Republican governments alike.
These assaults are made easier by the character of the Supreme Court’s 1973 Roe v. Wade ruling. The court didn’t base its verdict on a woman’s unequivocal 14th Amendment right “to equal protection of the laws,” but on medical criteria. It allowed state governments to restrict abortion after “viability,” which advances in medical science make earlier during pregnancy.
It is the liberals on the Supreme Court — and in general — who are the most strident opponents of free speech and association. They fear the working class, who they see — falsely — as increasingly bigoted and racist, and want to restrict our rights.
A June 30 Times article quotes University of Michigan law professor Catharine MacKinnon, who complains that the First Amendment “has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.”
“Free speech reinforces and amplifies injustice,” the Times says.
Blows against freedom of association are being struck by those acting on the call of Democratic Rep. Maxine Waters to drive government officials from public life by harassing them. Senate Majority Leader Mitch McConnell was hounded by government opponents chanting, “We know where you live,” as he left a restaurant in Louisville, Kentucky, July 7.
Far from being reactionary obstacles, we need hard-won political rights.