13.07.2022, Tomasz Konicz
The Republican-hijacked US judiciary is on the road to post-democracy.
The smartphone is the best weapon against widespread police violence in the United States. The police killing of George Floyd, which led to mass protests across the country in May of 2020 and reignited the Black Lives Matter movement, would not have been solved if it weren’t for clear video footage. There are hundreds of cases of police violence that have been captured by courageous witnesses or activists and scandalized through social media.
That, at least in Arizona, may soon be coming to an end. A new police law in the western state bans all recordings of police arrests made from a distance of less than eight feet. According to human rights organizations such as the American Civil Liberties Union (ALCU), this rule in practice opens the door for abuse by police officers. Since all police officers in Arizona can now demand a distance of eight feet from filming witnesses, video recordings of arrests are likely to be prevented simply by the police officer walking towards the filming witness. The new requirements are thus even more repressive than the similar post-Democratic jurisprudence in the Federal Republic. The ALCU in Arizona commented that “one of the most effective tools” against human rights violations has been compromised.
The new police law in Arizona is not only “a bad idea,” it is also “unconstitutional,” the ALCU criticized. Yet it is questionable whether such a statement is still meaningful, since the idea of what is constitutional in the US is undergoing rapid, reactionary change. The ALCU could be in for a surprise when it goes to the US Supreme Court on this issue, after the highest judicial body of the state revised decades of legal practice in the US with a series of spectacular landmark decisions, as well as previous landmark decisions.
The nine justices of the “Supreme Court” are nominated by the president and appointed for life by the US Senate – and the US right has managed to win a clear majority on the panel in recent years. Donald Trump, Joe Biden’s right-wing populist predecessor in office, was able to fill three Supreme Court seats during his tenure. For years, the increasingly right-wing Republicans pursued a deliberate strategy of reactionary politicization of the US judiciary, with reactionary judicial organizations, such as the Federalist Society, which has been called the “Constitutional Taliban,” elevating right-wing activists, sometimes even those with a lack of legal expertise, to key positions in the judiciary.
This also applies to the Supreme Court. Currently, six of the nine justices are considered “conservative,” belonging to the right-wing of the political spectrum. As the US media has pointed out, this reactionary majority is in fact trying to turn back the clocks of social development by waging a right-wing culture war.
It appears that the justices’ conservative majority identifies with the America of the 1950s and 1940s, when the nation was “Christian, white and rural,” human rights activists commented in The Atlantic. The Supreme Court is thus attempting to reverse the profound demographic and cultural changes in the urbanized United States that shaped an “ethnically, religiously, and culturally diverse America.”
Abortions: Back to the Past
This has become especially evident in abortion law, where, at the end of June, the right-wing majority overturned the Supreme Court’s 1973 and 1992 landmark decisions establishing a federal right to abortion. Now, it is again up to the states to regulate abortion law, which will lead to a massive restriction of the rights of many women in conservative regions. The three liberal judges who voted against the ruling noted in their minority opinion that in the future, “young women would grow up with fewer rights” than “their mothers and grandmothers.”
The verdict, which was accompanied by widespread protests, was only one building block in a reactionary strategy of outright judicial warfare, in which a politicized judiciary is attempting to further restrict the leeway of the Democratic Biden administration, which has already been narrowed by lobbying and crisis dynamics. It almost seems as if the Republicans, who at the latest with Trump’s election developed into a right-wing populist force open to the extreme right, will continue to govern through the Supreme Court.
Rollback on Environment, Climate, Religion, Gun Rights
This is especially true in the case of environmental and climate policy, which in any case has been massively watered down by the neoliberal forces in the Biden administration in comparison to the promises made in his election campaign. Another landmark Supreme Court ruling, coming just days after the de facto abolition of federal abortion rights, massively curtailed the powers of the US Environmental Protection Agency (EPA). In the future, the EPA will no longer be able to set emissions standards for coal or gas-fired power plants. This effectively makes climate policy impossible. All limits on greenhouse gas emissions will have to be enacted into law, where Republicans have extensive means to sabotage climate change initiatives. It was conservative and Republican politicians from the coal state of West Virginia who brought this dispute to the conservative-dominated Supreme Court.
At the same time, the reactionary judicial offensive continues with blow after blow: The Christian right of the USA can be pleased about fundamental decisions – again handed down by the right-wing majority of 6 to 3 – which place religious acts of individuals at public secular events under the protection of religious freedom. A plaintiff sports coach felt his rights were violated because he wanted to pray publicly on a school’s athletic field after a football game. This public religious act, which was previously considered a private matter and not permitted during working hours, has now been legitimized by the highest court. In effect, this legalizes prayer in public schools – and erodes the separation between church and state. Shortly before, the Supreme Court also ruled that private religious schools were entitled to state subsidies.
The gun lobby in the United States – despite regular rampages and mass murders in the socially broken society – can also count on the right-wing majority in the Supreme Court. In June, the “conservative” justices declared that a gun law in New York, according to which the concealed carrying of weapons can be authorized only with “probable cause,” is unconstitutional. Again, the three liberal judges voted against the right-wing majority’s ruling that all US citizens may carry a gun in public for self-defense. This landmark decision is likely to make many regulations restricting gun rights obsolete. According to initial estimates, a quarter of all US citizens live in states where restrictions on the carrying and possession of guns could now be scrapped.
What is the Point of Elections if Congress is Already Filled?
In the meantime, legal attacks on the bourgeois-democratic constitution of the United States are also emerging, which even question the foundations of capitalist democracy – such as the right to vote. At the end of June, the Supreme Court allowed the case of Moore v. Harper to be heard, which is ostensibly about the practice of so-called gerrymandering in the state of North Carolina, which is favored by the US right-wing. This involves redrawing electoral districts to give wealthy, white areas and suburbs greater electoral weight – which benefits Republicans.
The North Carolina Supreme Court ruled that this gerrymandering, which helped Republicans in the southern East Coast state maximize their electoral chances, was illegal because the changes created “extreme partisan advantage.” North Carolina House Speaker Timothy K. Moore then went to the Supreme Court, using an exotic legal interpretation that at the state level all power comes from the state congress, the legislature, and that the courts, the judiciary, do not have the authority under the Constitution to nullify the state’s election laws – and this suit, based on the marginal “independent state legislature doctrine,” was promptly allowed to proceed.
The implications of this legal construct are far-reaching and fatal, as it involves more than just tailored voting districts. State constitutions would effectively cease to provide legally binding rules in the conduct of state and federal elections. The courts and governors would be deprived of their remedies to prevent manipulation of the electoral process or outcome that might be decided by the majority in the state congresses. Even the flat-out ignoring of election results that don’t suit the – right-wing – majority in the state congresses would be possible under the nationwide establishment of the “independent state legislature doctrine.” Indeed, the Trump administration, invoking similar legal constructs, has sought to overturn the results of the last election it lost. As US media pointed out, it is hardly possible to “overestimate the danger” posed by this case before the Supreme Court.
There Is No Going Back to the Past
The reactionary campaign of the politicized US judiciary would thus effectively call into question the introduction of universal suffrage should the Supreme Court, whose legitimacy is now doubted by leading US media such as the New York Times, give its blessing to these anti-democratic efforts. But, of course, a reactionary return to the past, which is not only troubling the American right, is not an option.
The reactionary aspirations in US politics and the state apparatus, as they are also present in the FRG in a broad spectrum from AfD to Wagenknecht, do not, after all, engage with the increasing social and ecological disruptions and crisis processes, which make an indirect form of capitalist rule, democratically mediated through ideological consensus-building, increasingly difficult. In view of capital’s inability to effectively confront the economic and ecological crisis, the need for systemic transformation is becoming ever more apparent. Thus authoritarian, ultimately fascist efforts to maintain the status quo are gaining steam, which cannot even be stopped by the act of voting.
The forms of capitalist rule mediated by the market and the judiciary threaten to turn into direct, dictatorial maintenance of power in the unfolding cascade of crises. Little resistance can be expected from the Democrats, who are currently engaged in their latest neoliberal dance on the volcano of a fractured US society. While the Biden administration has met the right-wing judicial offensive with a defensive posture and blank appeasement, at times even disparaging feminist activists who urge decisive action as “unworldly,” only the few left-wing Democrats in the House of Representatives warn of the consequences of this apathy.
The United States is experiencing a creeping “judicial coup,” left-wing politician Alexandria Ocasio-Cortez declared in late June, in which the Supreme Court is blatantly usurping “presidential and congressional powers” in flagrant violation of its authority. If the Biden administration does not act now against the right-wing majority on the Supreme Court and “put it in its place,” the chief justices will soon “go after the presidential election,” Ocasio-Cortez warned.
Supreme Court: Reactionary Continuities
It is a common misconception to think of the US Supreme Court as a principled progressive institution because of some progressive rulings on minority and women’s rights during the civil rights movement in the 1960s and 1970s. In the history of the United States, the panel has often played a reactionary role, with justices seeking to prevent fundamental reforms.
In the 1930s, the Supreme Court tried its best, and largely in vain, to torpedo the New Deal of progressive President Franklin D. Roosevelt. In the mid-19th century, the Supreme Court’s constitutional guardians opposed the Republican Party and its president, Abraham Lincoln, by attempting to use legal remedies to thwart the curbing of slavery. The Supreme Court, which as recently as 1857 denied civil rights to African Americans by a majority of 7 to 2 in an openly racist landmark ruling, was one of the last bastions of power of the slaveholding states in Washington. After the outbreak of the Civil War, by the way, Lincoln found a simple recipe against the reactionary judicial sabotage: he changed the composition of the Supreme Court by a law in such a way that the supporters of slavery and secession no longer found a majority in the body.
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Originally published on konicz.info on 07/13/2022