Behind the Dithering on Our High Court
By Carl Davidson
LeftLinks Weekly, April 26, 2024
Some of us can remember a relatively liberal U.S. Supreme Court, an institution that was often under fire from a far right that wanted its powers gutted.
We could recall the Warren Court of 1955 and the Brown Decision, an initial enabling act to overthrow decades of segregation in the South and elsewhere in the country. Next up, those of us just entering politics in the 1960s took note of several high court decisions that reversed some verdicts of the Smith Act and the McCarran Act, both of which had fueled the anti-communist and anti-left tirades of Senator Joe McCarthy and the FBI's J. Edgar Hoover.
Today we have a different view at hand. The current Supreme Court hearings regarding 'immunity' from prosecutions of crimes committed by a president, both in office and afterward, should serve as a correction to our earlier one-sidedness. Bizarrely, we have a Court today seriously discussing whether a president can assert immunity even if he or she took paramilitary action to assassinate his or her political opponents among U.S. citizens. As several legal commentators have pointed out, given that kind of immunity, you have a King, not a President. Granted such immunity, why stop there? Such an elected tyrant could assassinate the entire high court, and replace Congress as well, and still be within ‘the law,’ if one might call it that.
What's also bizarre here is the Justices, or five of them anyway, have no need to wander off into a never-never land debating hypothetical dilemmas. Right in front of their noses are the very current matters of a president organizing the Jan. 6 insurrection to stop Biden's inauguration, or pleading with a Georgia official to stuff ballot boxes with 12,000 'found' votes, or stuffing a truckload of U.S. secret documents into his Florida basement, to sell, blackmail or do whatever else he might do with them. Moreover, he ignored requests for their return, attempting to hide them, under the FBI finally raided the place to reclaim them for proper government storage. We don't even have to stop here, as we see Trump's current trial in Manhattan and its violation of election laws.
So why are these five Justices acting this way? We can note that three of the five were added to the court by Trump, hand-picked from a list compiled by the far-right Federalist Society. When added to the two long-standing reactionaries, Justices Thomas and Alito, we have, at least, a Trump-leaning GOP court.
There's more to it, and it gets rather slimy. In their speculations, all ‘The Five’ have to do is divert attention and waste time. As the number of weeks before the fall election decrease, they can argue that any decisions be put off until after it's over. If Trump loses, the matter is more or less moot. If he wins, he can make undue use of his pardon powers and dismiss all the cases, plus free all of his convicted 'political prisoners.' In short, ‘The Five’ can get to decide by not deciding.
But we would do well to take a deeper look. To be sure, the current court was shaped by one man, Mitch McConnell, who unconstitutionally disallowed President Obama from making his high court pick, then quickly dropped those 'rules' so Trump could pick three. Where we need to get a firmer grip is that the Supreme Court was never a 'neutral' body above the fray to be easily tilted one way or another. We need to note it's long-standing restrictions on the franchise, formed around the social construction of a 'white race' at the outset, then reinforced by the Dred Scott Decision, asserting that 'the black race' had no rights that whites were bound to respect.
It took a Civil War to overturn Dred Scott. And it took another 'war after the war' to overthrow the brief rise of an interracial workers' democracy arising in the Black Reconstruction spanning tten states for various periods of timeover a decade. The Hayes-Tilden deal was arranged behind closed doors that none of our courts bothered to open. To make sure the 'white redeemers' kept their power, the high court ruled for 'separate but equal' in 1898's 'Plessy vs. Ferguson,' which, as we know, allowed separation but not equality in real life.
During and after World War One, the court backed up all the reactionary anti-immigrant and anti-left legislation used to break up the Socialist Party. Debs remained in jail until pardoned by President Harding. Next the court opposed most of FDR's New Deal legislation, until he threatened to add five new members to it. Then he got the one vote needed for his 5-4 majority. But Congress soon produced the Smith Act and the McCarran Act to go after the left, labor and civil rights movements once again, putting more than a hundred Socialist Workers Party and Communist Party USA members on trial, and many of those in prison.
Powerful mass struggles and good lawyers helped defeat many of these outrages. But many are still on the books. And the 'COINTELPRO' war against the Black Panthers, including police death squads, revealed how authorities could act, with or without legal cover.
Even with our few victories, we would not like to repeat many of these episodes. In the short run, we have one pending way to thwart the ambitions of the current Five. Whatever they decide, or decide by indecision, we can turn out voters in massive numbers, especially in the critical battleground states, to defeat the Orange Menace decisively, once and for all, then make sure the votes are counted properly. The results must be secured, and Democrats sworn in from the Oval Office on down. This is far from any promised land, but it's far better terrain to expand the Squad, build organizations for more elections going forward, and work toward gaining a government of a Third Reconstruction.