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Courts, Kavanaugh, and constitutional hardball

Originally published: Public Seminar on October 8, 2018 by Jeffrey Isaac (more by Public Seminar)  | (Posted Oct 10, 2018)

On November 22, 1895 Eugene V. Debs stepped outside of the Woodstock Jail in Chicago, where he had been imprisoned for six months. Debs, the President of the American Railway Union, had been one of the leaders of the Pullman Strike of 1894, considered by many to be the first major national strike in American labor history. To make a long story short, the strike paralyzed the Chicago rail yards, disrupting much interstate commerce; a federal injunction was issued against ARU leaders, prohibiting them from communicating with their members and thus leading the strike; when the strike intensified, President Grover Cleveland sent in federal troops to enforce the injunction and quash the strike; the labor conflict turned predictably violent; the strike was eventually broken, and Debs and other union leaders were arrested, a move upheld by the Supreme Court on May 27, 1895 in In re Debs.

Debs was a great orator, and “Liberty,” the speech he gave upon his release from Woodstock Jail, is a brilliant speech. Debs powerfully evokes “the spirit of liberty” heralded by the Declaration of Independence, and invokes the promise of a freedom yet to be redeemed by American workers. As Nick Salvatore made clear years ago in his classic biographyEugene V. Debs, Citizen and Socialist, this speech marked an important moment in the evolution of Debs from a labor activist with radical republican leanings to the country’s leading socialist.

There are many reasons to revisit the speech these days, and I was teaching it this week in my class, “Making America Great Again? The Declaration of Independence and the Meaning of American Citizenship.” And it hit me: this is the perfect text through which to think about the Kavanaugh hearings. It is now clear that Trump and McConnell have succeeded in steam-rolling the Kavanaugh confirmation, thereby cementing a new conservative Republican majority on the Court that threatens to reshape jurisprudence for decades. And it is now widely acknowledged that the Court has been profoundly politicized, and the much-vaunted “guard rails” checking executive power have been discarded.

And yet the Debs case reminds us that the courts have always been heavily politicized, and that the relative “abatement” of the use of the courts as a blunt tool of power is a relatively recent, and very precarious, development, whose limits have now been clearly exposed.

Debs was imprisoned because the federal government did not hesitate to deploy coercive force to enforce a federal injunction, and the federal courts did not hesitate to issue injunctions that prohibited workers from collectively associating, collectively bargaining, collectively withdrawing their labor-power, and collectively picketing the facilities of employers who refused to bargain in good faith.

The most powerful parts of his speech are his denunciations of the federal judiciary:

Certain it is, in the light of recent judicial proceedings, that I stand in your presence stripped of my constitutional rights as a freeman and shorn of the most sacred prerogatives of American citizenship, and what is true of myself is true of every other citizen who has the temerity to protest against corporation rule or question the absolute sway of the money power. It is not law nor the administration of law of which I complain. It is the flagrant violation of the constitution, the total abrogation of law and the usurpation of judicial and despotic power, by virtue of which my colleagues and myself were committed to jail, against which I enter my solemn protest; and any honest analysis of the proceedings must sustain the haggard truth of the indictment. In a letter recently written by the venerable judge Trumbull that eminent jurist says: “The doctrine announced by the Supreme Court in the Debs case, carried to its logical conclusion, places every citizen at the mercy of any prejudiced or malicious federal judge who may think proper to imprison him.” This is the deliberate conclusion of one of the purest, ablest and most distinguished judges the Republic has produced.

And again:

In the great Pullman Strike the American Railway Union challenged the power of corporations in a way that had not previously been done, and the analyzation of this fact serves to expand it to proportions that the most conservative men of the nation regard with alarm.

It must be borne in mind that the American Railway Union did not challenge the government. It threw down no gauntlet to courts or armies—it simply resisted the invasion of the rights of workingmen by corporations. It challenged and defied the power of corporations. Thrice armed with a just cause, the organization believed that justice would win for labor a notable victory, and the records proclaim that its confidence was not misplaced . . . But the defeat of the American Railway Union involved questions of law, constitution and government which, all things considered, are without a parallel in court and governmental proceedings under the constitution of the Republic. And it is this judicial and administrative usurpation of power to override the rights of states and strike down the liberties of the people that has conferred upon the incidents connected with the Pullman strike such commanding importance as to attract the attention of men of the highest attainments in constitutional law and of statesmen who, like Jefferson, view with alarm the processes by which the Republic is being wrecked and a despotism reared upon its ruins . . . the corporations, goaded to desperation, played their last card in the game of oppression by an appeal to the federal judiciary and to the federal administration . . . I am aware that innuendoes, dark intimations of venality are not regarded as courageous forms of arraignment, and yet the judicial despotism which marked every step of the proceedings by which my official associates and myself were doomed to imprisonment, was marked by infamies, supported by falsehoods and perjuries as destitute of truth as are the Arctic regions of orange blossoms.

As labor law scholar William E. Forbath has noted:

in the late nineteenth and early twentieth century, the labor injunction enabled hostile employers and public officials to depict peaceful protest and mutual aid as the acts of outlaws. From the 1890s until the New Deal, the chief political goal of the American Federation of Labor (AFL) was repealing this judge-made law. Repeatedly, trade unionists brought to state and federal lawmakers their stories of broken strikes and their claims of constitutional wrongs by the nation’s courts — of judicial violations of the freedom of speech and association, and the freedom to quit, individually and in concert. From the 1890s through the 1920s, labor prevailed on both state legislatures and Congress to pass roughly forty “anti-injunction statutes,” loosening the judge-made restraints on collective action. However, at least twenty-five of these statutes were voided on constitutional grounds, and most of those not struck down were vitiated by narrow construction. Until the Great Depression and the New Deal, courts had both the power and the will to trump these measures. In 1932, Congress enacted the Norris-La-Guardia Act, which stripped federal courts of authority to issue injunctions in labor disputes. The new anti-injunction law did not undergo Supreme Court scrutiny until 1938. By then, however, New Deal judges and jurisprudence had begun to vanquish the old legal order, of which “government by injunction” had been a central pillar.

It is in this context that we must understand Franklin Delano Roosevelt’s ill-fated “Court packing” scheme of 1937 — as part of a much broader process whereby the quite manifest class biases and injustices of the federal judiciary were being contested, by Democratic political leaders pressured by radical social movements and especially a radical labor movement. (Though it is worth noting that the important Norris-LaGuardia Act of 1932 was drafted and moved through Congress by two liberal Republicans, Senator George William Norris from Nebraska and Congressman Fiorello H. LaGuardia from New York City. This species of politician has long been extinct).

In their fine and important book How Democracies Die, Steven Levitsky and Daniel Ziblatt treat FDR’s court-packing effort as a prime example of the dangers of executive overreach, and “norm erosion” that threatens “democracy,” and they treat the defeat of FDR’s effort as an exemplary moment in which “the norm held” and “the system of checks and balances had worked.” But of course, as the simple example of Debs above demonstrates, the “norm” of judicial independence was hardly institutionalized at the turn of the century and even by the 1930’s, if it even can be described as a “norm” rather than an “ideal” or perhaps even a myth. What Levitsky and Ziblatt call guardrails of democracy can sometimes just as easily be described as impediments to democracy. The pre-New Deal Court is one good example. Perhaps more importantly at present, the steam-rolling of Kavanaugh makes clear what has long been clear to many of us: that, in the words of Adam Serwer in the Atlantic,

The Guardails Have Failed: The conflict over Trump’s Supreme Court nominee exposed the fast-eroding institutional barriers to the president’s authoritarian instincts.

What now?

Serious people have made strong arguments in support of the idea that the Democrats, should they ever achieve a strong majority, ought to again attempt to “pack the courts” (see especially the excellent pieces by David Faris and by Scott Lemieux, but also here and here). I am inclined to agree with this idea. I definitely do not agree with Bob Bauer, who argues that to attempt such a move would be “to emulate President Trump’s contempt for democracy and the rule of law.” There is nothing sacrosanct about either the Court or the number of justices that sit on it. The number nine is not prescribed by the Constitution, and was only established by the post-Civil War Judiciary Act of 1869. And whether or not altering this Act demonstrates contempt or respect for democracy and the rule of law depends on how you assess the actual effects of the exercise of judicial power. At the same time, there may be good strategic or tactical reasons to avoid such an attempt (the legal blog Balkinization has run a fine discussion that centers on Mark Tushnet’s argument about “the small ‘c’ constitution”). More to the point, we are far from the moment where anything approaching FDR’s political majority, supported by the mass mobilizations of the 1930s, is even imaginable.

I do not share the view, expressed a few days ago by Samuel Moyn in Boston Review , that it is foolish for liberals to place great emphasis on the courts and especially the Supreme Court, and that such emphasis supports “juristocracy” rather than “democracy” (a similar view was articulated in 2005 by Howard Zinn in a piece recently re-posted by the Progressive). Courts, including constitutional courts, can play an important role in an invigorated political democracy, as Jurgen Habermas, and many others since, have argued. Furthermore, legal mobilization is a fundamental form of political mobilization in which courts are important spaces of argumentation, contestation, and broader politicization (see, for example, Michael McCann’s classic Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization ). At the same time, I do agree with Moyn that a politics of rights that is centered on litigation, and that regards courts as exalted “saviors” of progressive values that stand above the political fray, is hopeless. I would not go so far as to say, as he does, that “A legal culture less oriented to the judiciary and more to public service in obtaining and using democratic power in legislatures at all levels is the sole path to progress now.” I lack the confidence to speak of “the sole path to progress.” But I would say that there is no viable progressive or left liberal or left political strategy that does not center on “using democratic power in legislatures,” and in executives, to resist authoritarianism and to advance the broad values of democratization.

What is certain is that the Trumpist Republican party plays constitutional hardball if not anti-constitutional hardball (indeed, a better sports analogy might be “no holds barred” cage fighting), and we must play constitutional hardball, and indeed democratic political hardball more broadly, if we are to defeat Trumpism in a way that truly advances democratic values.

While we might inhabit “a second Gilded Age,” and while a resurgence of socialism may represent a promising and vital sign on the political margins, I believe we are far from the age of Debs. But Debs is nonetheless an example and an inspiration, and it seems fitting to close with his powerful appeal to the power of democratic electoral power in “Liberty”:

what is the duty of Americans? Above all, what is the duty of American workingmen whose liberties have been placed in peril? They are not hereditary bondsmen. Their fathers were free born—their sovereignty none denied and their children yet have the ballot. It has been called “a weapon that executes a free man’s will as lighting does the will of God.” It is a metaphor pregnant with life and truth. There is nothing in our government it cannot remove or amend. It can make and unmake presidents and congresses and courts. It can abolish unjust laws and consign to eternal odium and oblivion unjust judges, strip from them their robes and gowns and send them forth unclean as lepers to bear the burden of merited obloquy as Cain with the mark of a murderer. It can sweep away trusts, syndicates, corporations, monopolies, and every other abnormal development of the money power designed to abridge the liberties of workingmen and enslave them by the degradation incident to poverty and enforced idleness, as cyclones scatter the leaves of the forest. The ballot can do all this and more. It can give our civilization its crowning glory—the cooperative commonwealth.

Would that it be so.

November fast approaches. We have much work to do. And the work is just beginning.

Jeffrey Isaac is James H. Rudy Professor of Political Science at Indiana University, Bloomington.

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