From
Detroit/Seattle Workers' Voice mailing
2nd item
September 29, 2024
The Roberts Court: tip of the right-wing spear
By Pete Brown,
Detroit Workers’ Voice
Oakland Socialist recently carried an article by John Reimann (1) which is a sharp exposure of the Supreme Court’s decision granting immunity to Donald Trump for his presidential crimes. The bourgeois right wing is hoping to take over the presidency in the fall, and the Supreme Court, led by Chief Justice John Roberts, plays a major role in their plans. If Trump loses the election, the Court will be standing by ready to certify that the election was stolen, or hard to determine, and thus throw the election into the House of Representatives (where the Republicans have a majority). Hundreds of state representatives and others serving as county supervisors in charge of certifying ballots were election deniers in 2020, so they can be counted on to raise doubts about the election outcome if it favors Harris. Trump is assuring his followers that if he gets reinstalled in office, 2024 will be the last election. And the Court appears ready to back him in this plan. As Reimann says, “Supreme Court Chief (In)Justice John Roberts has dropped the pretense. … His recent decision to give Trump a ‘get out of jail free’ card discards all of that. … The [immunity] decision … is a transparent step towards putting Trump back in office by hook or by crook. … Roberts … no longer cares about what the non-MAGA majority thinks, because he is confident he can get Trump back in, and together they can ram through whatever they like no matter what the majority wants.”
Immunity for presidents – especially Trump
The Court’s immunity decision in late June declared that Trump could not be prosecuted for actions deemed “official acts” of a president. The case arose from Special Prosecutor Jack Smith’s attempt to bring charges against Trump for his attempted coup on January 6, 2021. Various charges were being considered in the case: obstruction of Congress, conspiracy to overthrow the government, etc. But the Court, in a 6-3 ruling, decided that Trump was immune from anything he did that was part of an “official act.” And what is “official” could include a wide variety of actions, including anything having to do with the military, since the president is officially the commander in chief. So, if Trump were to become president again, he could order the military to round up all his political adversaries – or anyone – and this would be considered “official”, hence immune from any possible criminal charges. The ruling in this case is not only an absurd recital of facts, making a traitor sound like a respected official, but is also a dangerous indicator of Trump’s future course of action. The Court was not satisfied with letting Trump off for his past actions; they also handed him a get-out-of-jail-free card for his future course of becoming a dictator.
This article (2) in the
Los Angeles Times points out that just this year, the Supreme Court has ruled in Trump’s favor in three major cases. First: last spring, election officials in some states attempted to bar Trump’s name from appearing on election ballots in 2024, because the 14th Amendment to the constitution says anyone who has engaged in insurrection cannot serve as an official of the government. Clear enough, it would seem. And anyone who has been awake the last few years knows that Trump engaged in insurrection on January 6, 2021. But no, not the Supreme Court justices. They said it’s not good enough for state officials to recognize Trump’s actions as insurrection; that determination must be made by Congress. And guess what? The House of Representatives, controlled by the Republicans, is not interested in invoking the 14th Amendment against their party’s leader, Trump. But even the three liberal justices – Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson – went along with the conservatives in a unanimous ruling for Trump. Their excuse was that otherwise there would be electoral chaos, with some states allowing Trump on the ballot and some not. Well, what of it? The court doesn’t mind enforcing state-by-state chaos when it comes to abortion. This was a pathetic
indication of any liberal opposition to the Trumpists on the court.
Second: Some of the Trumpists who rioted in the Capitol on January 6, 2021, had been charged by federal prosecutors with the crime of obstructing Congress as it met to certify Biden’s victory in the 2020 election. Again, clear enough; that was in fact the purpose of their rioting, besides their desire to hang Mike Pence. But no, the court said; that’s not clear, they can only be charged with lesser crimes like trespassing and making a mess of the Capitol.
And third: the immunity case itself. This time the three liberal justices managed to get together and issue a fairly strong dissent. But it’s going to take more than dissenting votes in the Court to stop the right-wing steamroller. The Roberts court has been erecting a right-wing structure of law for the past 19 years. If Trump manages to attain the presidency a second time, his supporters, ready with Project 2025, look forward to a golden age of reaction.
The Roberts court – a historic low
Since Roberts became chief justice in 2005, the court has been picking apart rights previously won and recently has been on a tear. First of all, reproductive rights for women: the big setback was the ruling in June 2022 in
Dobbs v. Jackson Women’s Health Organization overturning 1973’s
Roe v. Wade. After promising to pay attention to precedent in their confirmation hearings, the three Trump-appointed justices threw away fifty years of precedent on the right to abortion and, together with Roberts and the two pillars of reaction, Clarence Thomas and Samuel Alito, trashed
Roe. And the right wing hasn’t stopped there. Now, they are besieging the court with new lawsuits and state laws to try and ban mifepristone, the abortion pill. Republicans on the national level, including Trump himself, know that the limitation of abortion rights is a losing issue for them, so for now they are trying to keep quiet on the issue during this election campaign. But if Trump takes office again, expect a new wave of limitations on reproductive rights. (3)
But as another article by Linda Greenhouse (4) explains, the attack on women’s rights is only part of what the Roberts court has accomplished: it has reinterpreted the Second Amendment to make private gun ownership a constitutional right; eliminated race-based affirmative action in university admissions; elevated the place of religion across the legal landscape; and curbed the power of regulatory agencies. These were long-term goals of conservatives that the Roberts court has been able to accomplish. And they have real-life results for working people. The court’s elevation of “the right to bear arms” as an unlimited individual right has put the status of state laws limiting gun ownership of those arrested for domestic violence – “red flag laws” – in question. This can be a life-and-death question for some people, especially women. The court’s ruling in a Colorado case that a business open to the public has the right to refuse to serve certain people (gays) on the basis of religion has opened the door to new state laws in Alabama and Texas ordering religious indoctrination in public schools. The court’s banning of affirmative action in college admissions has already resulted in a drop in college admissions of blacks. And the ruling has also led to the closing of many corporate and government DEI (diversity, equity, and inclusion) programs. The court’s discarding of the
Chevron ruling, that courts should defer to administrative agencies, puts into question all kinds of regulations concerning workers’ rights, workplace health and safety, and environmental regulations. (5) The Supreme Court has now in effect ordered that all federal regulations be subject to judicial review, which is sure to clog the courts as capitalists try to avoid any kind of regulation. The court has already used their new “judicial review” doctrine to cancel Biden’s program of student loan forgiveness.
And the Greenhouse article doesn’t mention the court’s gutting of the Voting Rights Act. The original Act, passed in 1965 and since then renewed many times, featured a “preclearance” provision which said that certain states that planned to pass any law concerning voting must first submit the proposed law to the federal Justice Dept. for preclearance, to make sure it did not worsen the voter suppression practiced by those states. This was particularly aimed at Southern states (and Arizona) with a history of racial discrimination at the polls. But in 2013 the Roberts court ruled in
Shelby County v. Holder that the data on voter registration was out of date, and on that basis threw out the preclearance provision. (6) They didn’t simply order the census bureau to gather some new data, no, they said nothing could be enforced until Congress mandated some new data. And Congress, with a Republican majority in the House and a filibuster-proof majority required in the Senate to get anything done, has since done nothing about gathering new data. The court has effectively strangled enforcement of the Voting Rights Act. The result has been a rash of new state laws, e.g. in Alabama and Texas, mandating strict voter ID requirements, new forms of gerrymandering, etc., to suppress the voter turnout of blacks and Hispanics.
Also overlooked by the Greenhouse article is
Citizens United v. FEC (2010), the case that allowed unlimited corporate money to go into elections. (7) In this case, Roberts and his fellow conservatives declared that individuals should have unlimited political speech; but also that corporations must be considered persons; and that stuffing money into politicians’ campaign funds is not bribery, because it isn’t directly connected to some quid pro quo. Oh, no? So it’s just an accident that politicians follow the wishes of their campaign donors after the election? This was a decision made in some capitalist’s idea of heaven, and the capitalists have made full use of the decision since.
The Court’s immunity decision excited so much condemnation that President Biden, in late July, called for some reforms – an enforceable code of ethics for the Court and term limits for the justices. Biden said these are necessary to restore faith in the Court. But the rightists ridiculed his proposal, and in fact his reforms would not amount to much. In today’s society the Court swings the way the imperialist bourgeoisie does, and without a strong working-class movement, its rightward trend is inevitable. Reimann’s article notes that the working class is facing a sober situation today, with a sold-out trade union bureaucracy sitting on the workers’ movement, keeping it mired in NLRB legalism (enforced, in the end, by the Supreme Court). Reversing this is going to take more than a couple measly reforms.
Notes
- “MAGA Supreme Court drops the pretense”, Oakland Socialist, July 3, 2024, https://oaklandsocialist.com/2024/07/03/maga-supreme-court-drops-the-pretense/ .
- David G. Savage, Staff Writer, “Supreme Court gives Trump broad immunity from prosecution – for the past and perhaps future”, Los Angeles Times, July 1, 2024. https://www.latimes.com/world-nation/story/2024-07-01/supreme-court-trump-immunity .
- Linda Greenhouse, “Is there any twinge of regret among the anti-abortion judges?”, New York Times, Opinion – Guest Essay, June 23, 2023, https://www.nytimes.com/2023/06/23/opinion/abortion-supreme-court-dobbs.html .
- Linda Greenhouse, “Look at what John Roberts and his court have wrought over 18 years”, New York Times, Opinion – Guest Essay, July 9, 2023, https://www.nytimes.com/2023/07/09/opinion/supreme-court-conservative-agenda.html
- Matthew Daly, “What it means for the Supreme Court to throw out Chevron decision, undercutting federal regulators”, AP News, June 28, 2024, https://apnews.com/article/supreme-court-chevron-regulations-environment-4ae73d5a79cabadff4da8f7e16669929 .
- Christina A. Cassidy and Ayanna Alexander, “Supreme Court tossed out heart of Voting Rights Act a decade ago, prompting wave of new voting rules”. AP News, June 6, 2023, https://apnews.com/article/voting-rights-act-supreme-court-black-voters-6f840911e360c44fd2e4947cc743baa2
- Citizens United v. FEC, Wikipedia, https://en.wikipedia.org/wiki/Citizens_United_v._FEC . <>