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MintPress Spoke to Legal Experts, Rights Advocates and Historians About the Future of the US Supreme Court

MintPress spoke to legal experts, rights advocates and historians about the future of the U.S. Supreme Court

Originally published: MintPress News (July 9, 2018)   | 

UPDATE 7/10/18: President Donald Trump’s choice of Judge Brett Kavanaugh as his second Supreme Court nominee has confirmed that Trump seems dead-set on fortifying conservative control of the court for years, if not decades, to come. His record of hard-line right-wing stances on a range of social issues confirms what critics feared, and may push the Judicial Branch farther to the right for years, if not decades to come.

Despite widespread outrage and resistance, Hurricane Donald shows absolutely no sign of abating as it throws domestic and international politics into disarray.

President Trump has been unsparing in his push to pursue his agenda, attacking opponents on both sides of the aisle without mercy while throwing convention to the wind in regard to issues ranging from immigration to diplomacy, the #MeToo movement to global trade.

Through it all, the Supreme Court has served as a key ally, delivering devastating rulings on issues ranging from immigrants’ subjection to indefinite detention, gerrymandering, collective bargaining, and the discriminatory travel ban or “Muslim Ban.”

We can only expect this trend to intensify as Donald Trump pushes to fill the empty seat left by retired conservative Justice Anthony Kennedy, The vacancy gives Trump the ability to nominate a hard-right figure to the Supreme Court, ensuring a bulwark of legal defense for his anti-immigrant, anti-woman, and pro-business policies.

With a Supreme Court in the pocket of Trump and an increasingly hard-right Republican Party, the U.S. could be at the cusp of a major sea-change in relation to national law on the federal and state levels. Those who contend with systemic race-based discrimination and institutional obstacles are, with good reason, anxious about the potential damage that a far-right judicial branch could inflict on social and civil rights in the country.

Historian and ethnic studies pioneer Rodolfo “Rudy” Acuña feels “super angry” about the current state of the U.S. Supreme Court and its current trajectory. Yet the Chicana/o Studies professor at California State University Northridge doesn’t feel that the court should be seen as an asset to disenfranchised people or oppressed nationalities in the U..S.

“The Supreme Court has never been our friend,” Acuña told MintPress News. “Historically, its purpose has been to preserve conservatism–there’s always been some liberal on the court to give the illusion of fairness. It is important to struggle [against Trump] but not be delusional.”

“It is going to get worse so we must dig in deeply,” Acuña added.

Yet the potential for damage to the social gains achieved by people of color—such as civil rights, desegregation, affirmative action, and voting rights, among others–shouldn’t be estimated, warned Ken Montenegro, the national vice president of the National Lawyers Guild.

“The legal process matters because it is largely how, in this country, the state decides which lives or communities are disposable,” Montenegro told MintPress News.

What is at stake is survival.

Racism, whiteness and the bedrock of U.S. political culture

The very mention of the phrase “white supremacy” provokes a visceral reaction in the U.S.–first and foremost among white people. Why the continued demand for “rights,” when institutional racism–slavery, Jim Crow, segregation–is a thing of the distant past? Why this whining and resentment by ungrateful minorities? This must be “reverse racism.”

Even when a government agency like the Department of Homeland Security mimics neo-Nazi slogans like the famous “14 words”–“We must secure the existence of our people and a future for white children” – any suggestion of systemic racism is brushed off as the “PC” hysteria of a “social justice warrior” (SJW).

But the United States’ continuing global dominance and formidable economic strength was built on the brutal genocide of indigenous Americans, the enslavement of the African population, and colonial expansionism across North America–including the theft of one-third of Mexico’s territory in the U.S. southwest.

A rally against the integration of Central High School in n Little Rock, Arkansas, 1959.

A rally against the integration of Central High School in Little Rock, Arkansas, 1959.

These factors were key contributors to the formation of the pan-European ethnic identity of the “white race” and its socio-political byproduct, white supremacy–an ideology embedded in the founding documents and institutions of the United States of America.

Montenegro recalls how in downtown Los Angeles’ sprawling Skid Row, where extreme poverty and institutional neglect are concentrated on a staggering scale, a Black homeless activist described the U.S. Constitution as “a blueprint for our destruction.” He explained:

This is a blueprint for destruction because we have yet, as a society, to remove the rueful foundation of that document: genocidalist, slavery-enabling, land-thieving, and male dominated thinking.

Ajamu Baraka, the national organizer of Black Alliance for Peace and 2016 Green Party vice presidential nominee, agrees, telling MintPress News:

The Supreme Court has never been an institution beyond and above the politics of white supremacy…as are all of the elements of the U.S state.

There has always been an inextricable link between interpretations of the law and the prevailing politics of the time from the Dred Scott decision that upheld the original intent of the constitution that did not recognize that black people had rights that should be recognized by the courts, to the intervention of the court in 2000 that handed the presidency to George Bush.

When the court adjudicated the Brown case in 1954 that struck down official state segregation in education, the decision took place in a political environment in which the U.S. was taking an ideological beating internationally because of its racial apartheid policies in through the South and in many parts of the North.

Helping the bosses make the laws and break the laws

Last month’s Supreme Court ruling scrapping the 41-year-old ruling requiring non-union government workers to pay into union tills was also a major blow to workers’ collective bargaining rights, and a big victory for the ultra-rich, far-right financiers who also backed Trump. The court’s decision came amid an ongoing wave of attacks on workers’ rights—including anti-union propaganda campaigns, litigation, and so-called “right-to-work” laws that undermine workers’ rights, grievance procedures, wages and benefits.

“The Janus decision can be understood as a reflection of the prevailing politics of the time,” Baraka observed.

“That is reflected in the make-up of the court and the relative weakness of organized labor and the bipartisan understanding that the neoliberal project requires the containment of the working class,” he continued.

So the court as an instrument of class rule has been quite consistent.

Supreme Court Union Fees

Henry Nicholas, president of the National Union of Hospital and Health Care Employees, attends a protest by Philadelphia Council AFL-CIO on Wednesday, June 27, 2018, in Philadelphia. The protesters denounced Wednesday’s U.S. Supreme Court ruling that government workers can’t be forced to contribute to labor unions that represent them in collective bargaining, dealing a serious financial blow to organized labor. (AP Photo/Jacqueline Larma)

A glance at the Judicial Branch’s record shows the pivotal role it’s played disempowering the hard-fought protections won by U.S. workers. In O’Connor v Ortega [1987], the court ruled that employees could be searched at work as if they were suspected criminals. In Wards Cove Packing Co v Atonio [1989] the court decided in favor of preventing discrimination claims from being brought against employers, although this was eventually reversed. And in Hoffman Plastic Compounds, Inc v NLRB [2002], the decision was made to strip undocumented workers of their right to organize a union.

Invariably drawn from the top layers of U.S. society, the justices of the Supreme Court are clearly bound to represent the class interests of the de facto aristocracy and capitalists who hold a monopoly on political and social power in the United States. For critics, this belies any attempt to depict the court as having ever been progressive.

“Line them up; until recently they were all male, WASP… All of the judges are from Ivy League universities and aside from Sotomayor, they have never known poor people–the Supreme Court is already racist and fascist,” Acuña said.

“Decisions favoring labor have been rare, social issues rarer–the problem is we are delusional,” he added.

Lifelong social movement organizer and historian Roxanne Dunbar Ortiz, author of An Indigenous People’s History of the United States, is likewise skeptical.

“It certainly seems unlikely that social justice movements can make use of the courts,” Dunbar-Ortiz told MintPress News.

She continued:

I believe that since the 1950s, we have relied too much on the notion that the liberal “living constitution” theory would prevail, but I always had doubts that it was a good idea, rather than the more difficult route of building a progressive congress, electoral politics, taking the easy way of the courts, giving lawyers central roles rather than politics in command.

Rounded corners and reduced harm, yet the institutional violence grinds on

Yet the Judicial Branch has also served a double-edged nature, implementing social change in response to the organized clamor for justice from below.

“We know the judicial system was created, essentially, to maintain property interests, i.e. white supremacy and capitalism,” National Lawyers Guild Executive Director Pooja Gehi told MintPress News.

“However, the folks that actually interact with the legal system the most often are also those who are the most vulnerable to its negative impacts–poor people, people of color, queer and trans people, immigrants, prisoners, and so on,” she added, explaining:

As we know from historical social movements, the judiciary is best used as a tool in support of or alongside of organizing, advocacy, public education and other strategies that strive towards a fundamental shift in power.

History has proven that racist, unjust laws can disturb the government’s maintenance of social order when oppressed communities are driven to wage an organized and militant fight to win their rights. In these situations, reform becomes a necessity for the state.

Montenegro explained:

Most legal victories do not upset the dangerous and acute nature of the status quo, rather, they round the corners. We can call these rounded corners reform. When reform happens, the structural elements which cause harm, largely to traditionally targeted communities, remain intact.

We see this daily through hate crimes legislation used against targeted communities; prisons ‘reformed’ to make them more ‘humane although there’s no such thing; immigration laws that fail to question the racialized origin and nature of immigration law and enforcement ‘priorities.’

While such reforms don’t fundamentally transform the nature of state power, the effect they have on life-or-death daily obstacles faced by vulnerable communities can’t be understated.

For Gehi, who has worked with hundreds of low-income transgender and gender nonconforming clients, immigrants, prisoners, and other marginalized people, even such a seemingly mundane aspect of the legal system like administrative law forms “a fundamental part of the systemic, intentional barriers that poor people have to navigate on a daily basis.”

Gehi explained:

Access to healthcare, benefits, housing, child custody and immigration are all administrative legal procedures setting people up to be criminalized, homeless, separated from their families, deported and killed. While we can and should name that the judiciary is a tool of white supremacy, we have to take a harm reduction approach to supporting folks inside it.

Rights come from popular struggle, not state power

We’re far beyond the point where Donald Trump’s neo-fascist nature is even debatable. While previous administrations sought to veil their inhumane policies behind disingenuous aspirations toward multicultural diversity, Trump has shown no compunction in his pursuit of a racist agenda, nor has his top cop, Attorney General Jeff Sessions.

The clearly inhumane nature of the administration is fast showing the limits of legal remedies to systemic injustice.

“The initial liberal response to Trump’s draconian executive orders was to turn to the judiciary for ‘justice,’” Gehi commented.

“While this approach has had limited success, we are seeing more and more people grow skeptical of the courts’ ability to ‘save’ us,” she added.

A sign reading “Last ride for Jim Crow” in front of the headquarters of workers who pushed to overturn a discriminatory Kansas City ordinance by referendum. April 7, 1964. AP Photo

A sign reading “Last ride for Jim Crow” in front of the headquarters of workers who pushed to overturn a discriminatory Kansas City ordinance by referendum. April 7, 1964. AP Photo

Social change, civil rights, and economic rights can’t be credited to the courts or Congress alone any more than they can be credited to the police, the prisons, or the stock exchange.

“I’d offer that rights are inalienable whether or not they are ‘granted’ or ratified by a judicial system,” Montenegro opined.

“Where rights have been affirmed by the court, it’s often a diluted version of what folks were fighting for and arguably a tool to derail or forestall more radical social change.”

Institutions of state power, like the economic system to which the state is beholden, have never been a benevolent force for justice—but are, for the most part, a material obstacle to the interests of the working class, disenfranchised and oppressed

However, violent oppression, as a rule, gives birth to violent defiance. Look at the police killings of the past several years—while they may have led to a mood of terror in communities of color, they also resulted in a desperation which made itself felt through uprisings, waves of protest, and a collective rejection of the system’s murderously racist logic.

“Non-state alternative power is the only path open for resistance at this moment in history. The articulation of a set of rights that people are prepared to struggle for as part of a transitional program is a first step that will need to be followed up intensified organizing,” Baraka commented.

Continuing, he explained:

Fascism in the U.S. is not inevitable, but a prolonged commitment to authoritarianism in order to maintain capitalist class rule is a real possibility…It is quite clear that the normal functioning of bourgeois democracy with its norms and rule of law has now become impediments for continued class rule. Intensified repression is on the agenda if not countered by an organized resistance.

Yet rather than ensuring the smooth functions of an ultra-oppressive, exploitative and discriminatory state, a Supreme Court seen as an illegitimate tool of white supremacist lawfare could help remove the constraints from oppressed communities.

“Maybe it’s a good thing that we no longer have access to the courts,” Dunbar-Ortiz commented, noting that since Trump’s inauguration, mass demonstrations and rapid-response protests versus such policies as “zero tolerance” child detentions and the Muslim Ban have been steadily growing. Continuing, she added:

We need to maintain the momentum…but that is possible only if we organize every community in this country. Every community has core activists, even if it’s only one or two. We need to give them support…In this way, we can build a left with a base; there’s no hope or possibility otherwise.

Gehi urges organizers to understand that while it remains both inspiring and important to demand the abolition of harmful systems–as the Black Lives Matter and #AbolishICE movements have–it would be dangerous to dismiss the role of the judiciary.

“While it will never create the social change we desire, it can definitely further criminalize, and dispose of, everyone who is not white, male, cis and wealthy,” Gehi noted.

Those who are serious about “resistance” are faced now with a daunting pair of tasks–to defend our remaining basic rights in the short-term while building organizations and struggles capable of building a systemic alternative to the chaos, crises, and terror threatening our communities.

“Ironically, space for base-building that is informed by a radical program is going to require that the basic rights promised by the liberal bourgeois project will have to be defended,” Baraka noted.

For Professor Acuña, it’s simply time for us to drop our illusions, “do our homework” and stop messing around:

We have no choice–we either struggle, or go silently to the ovens.

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