A Power More Supreme Than Any Judge

The first day of Senate hearings on the Supreme Court nomination of Brett Kavanaugh began with raucous disruptions from protesters and denunciations from Democratic committee members. This expressed the deep fear and anger that people feel across the country over the court’s hard-right direction with Kavanaugh’s potential addition.

These protests are crucial, but, like the August 26 day of action to protest Kavanaugh, they’re seen by organizers mainly as a last-ditch publicity effort to shame senators before the Court is lost to the right for a generation.

What’s needed to stop Kavanaugh and the right — either before his confirmation or after it — are strong movements for abortion rights and civil liberties that can shift the political climate in the US.

But that requires more people on the left to break with the liberal mythology that sees the courts as purely legal bodies insulated from popular pressure.

From day one of the Trump era, the left has faced urgent questions about the role of the judicial branch in both resisting and upholding the administration’s attacks on the rights and freedoms of working class and oppressed people.

With their vows to use legal challenges to reverse White House attacks, organizations like the American Civil Liberties Union (ACLU) — with its post-election battle cry, “See you in court” — quickly emerged as leaders of the liberal section of the anti-Trump resistance.

But over the past two years, the Supreme Court has more often than not affirmed Trump’s policies against unions, Muslims and immigrants, and the Court will move even further to the right if Kavanaugh is confirmed.

As the ineffectiveness of a strategy of resistance through litigation by liberal nonprofits has become apparent — to say nothing of the tired but still popular refrain of urging Senators to “ask tough questions” during confirmation hearings — it’s urgent that we understand that the courts, like other branches of government, are political bodies that respond to the presence or absence of class struggle and social movements.

The right to have an abortion and the right of workers to form a union — both of which could be on the chopping block under a Court with Kavanaugh on it — were originally won thanks to the women’s liberation movement of the late 1960s and early 1970s and the militant labor struggles of the late 1930s.

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The importance of social movements is generally common sense on the left, but there is a curious exception when it comes to the courts, where many progressives and even socialists instinctively look to purely legal strategies and organizations.

For example, after Trump announced Kavanaugh’s nomination Democracy Now! hosted a discussion featuring the heads of many liberal nonprofits — the ACLU, Planned Parenthood, National Women’s Law Center (NWLC) and Lambda Legal — but no activists involved in grassroots organizing. The resulting conversation was predictably legalistic.

NWLC CEO Fatima Graves made the important point that, given Trump’s promises to appoint justices who will overturn abortion rights, Kavanaugh shouldn’t be allowed to dodge tough questions by simply claiming to “respect precedent” with regard to Roe v. Wade, the 1973 Supreme Court decision that recognized the right to an abortion.

But the solution put forward was to ask really tough questions. Graves called for “deeper probing into whether or not [nominees] really believe that Roe v. Wade was correctly decided, which we already know that Judge Kavanaugh has criticized in the past.”

ACLU Legal Director David Cole correctly pointed out that the Court’s legitimacy requires it to respond to popular sentiment, and that therefore “the answer has to be politics.” But he defined “real politics” as voting for Democrats in the midterm elections.

Cole and the other guests didn’t mention the three Democrtic senators who voted to confirm Trump’s first Supreme Court nominee, Neil Gorsuch — or Democrats like Hillary Clinton’s 2016 running mate Tim Kaine, who refuses to commit to voting against Kavanaugh in the name of “respecting the process,” despite his massive unpopularity among Democratic voters.

The Democrats’ commitment to politics as usual and bipartisan norms has hampered opposition to Trump since his election.

For all their angry rhetoric about Republicans refusing to hold hearings for Barack Obama’s nominee Merrick Garland, Democrats will ultimately play ball with Kavanaugh and follow procedure, hoping to get some prime-time sound bites along the way.

We absolutely should pressure politicians to vote against Kavanaugh, and not just “ask tough questions,” as socialists are doing with Republican Sen. Susan Collins in Maine.

But we also understand that politicians’ point-scoring isn’t the foundation for a genuine resistance. Instead, our efforts to block Kavanaugh’s confirmation must be one part of a broader, sustained effort to build movements that fight the right everywhere, whether it’s the streets, the workplace, Congress or the courts.

The widespread opposition to Kavanaugh needs to find expression in places beyond opinion polls, so that our anger and resistance becomes a stronger calculation in the courts’ decisions.

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It’s a fundamental myth that this country is based on a set of laws.

“Society is not founded upon the law; this is a legal fiction,” Karl Marx once wrote. “On the contrary, the law must be founded upon society, it must express the common interests and needs of society — as distinct from the caprice of the individuals — which arise from the material mode of production prevailing at the given time.”

In her book The New Jim Crow, Michelle Alexander — former director of the ACLU’s Racial Justice Project — masterfully parses through court decisions and legislation to illustrate the blatantly contradictory ways that the changing US legal system has been deployed to maintain the oppression and exploitation of Black people.

But by the same token, workers and oppressed people are also capable of bending the law to their needs.

By the time of the Roe v. Wade decision, for example, the women’s liberation movement was in full swing, holding large national demonstrations and hundreds of local speak-outs in the early 1970s.

It was winning, too. California’s Republican Gov. Ronald Reagan signed a state law decriminalizing abortion in 1967. By the early 1970s, over 20 states had passed similar or stronger legislation.

Anti-choice President Richard Nixon had appointed four justices to the Supreme Court before it decided Roe in 1973, but the women’s movement had shifted consciousness on abortion so greatly that one of those justices wrote the Roe decision, and two of them joined it!

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When the courts face even stronger social pressures, they can shift even more quickly.

That was the case in the years 1936-37, when an explosive strike wave forced a reactionary Supreme Court to reverse itself after years of striking down the “New Deal” policies of Franklin Delano Roosevelt, and instead uphold some of the most far-reaching policies of economic distribution in US history.

During Roosevelt’s first term, the Supreme Court struck down many of his policies as violations of freedom of contract (on the logic, for example, that a minimum wage law would prevent workers from “agreeing” to be paid below that by bosses) and the Constitution’s Commerce Clause, under which the federal government can only regulate “interstate commerce,” not economic activity within a single state, which included many large steel and auto manufacturing plants.

But then in 1937, the Court upheld the National Labor Relations Act (NLRA), which legally protected workers’ right to organize.

What changed?

After the NLRA was passed in 1935, employers refused to obey it, expecting that it would be struck down like the other New Deal policies. Rather than rely on the courts, workers took matters into their own hands.

In February 1936, Goodyear Tire fired over 100 workers who staged a sit-down strike to stop layoffs and wage reductions at its plant in Akron, Ohio. Thousands struck in solidarity, rebuffing a court injunction and hundreds of police. By the end of March, the fired workers were reinstated and the union won numerous concessions, such as control over working hours.

In the wave of sit-down strikes over the next two years, the working class, especially in manufacturing plants, overwhelmed the bosses. In 1937 alone, nearly half a million workers participated in a sit-down.

In one the greatest labor conflicts in US history, thousands of workers at the General Motors plants in Flint, Michigan, staged a sit-down strike beginning in December 1936. It ended in victory two months later.

One primary demand was that GM stop violating the NLRA and recognize their union. GM at first refused to negotiate, condemning the workers for “striking at the very heart of the right of possession of private property” by occupying the plants.

The workers argued that the sit-down was necessary to defend their right to organize under the NLRA, refused to follow court injunctions that ignored this reality, and battled police who tried to evict them.

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Did the NRLA protect the workers’ right to organize? Every court which ruled on this said the NLRA could not protect manufacturing workers because they did not participate in “interstate commerce.” The judicial branch persisted in its reactionary course despite the clear popular mandate for the New Deal, expressed in Roosevelt’s smashing re-election victory in 1936, just before the Flint strike.

But the sit-down strikes were a terrifying display — to the ruling class — of workers’ power.

A month after the GM victory, 100,000 workers rallied in Detroit to defend sit-down strikes and protest police evictions. Detroit Federation of Labor president Frank Martel thundered to the crowd, “From this time on, the constitutional rights of this community are going to be respected in the City Hall, the police station and the courts, or we’ll turn them wrong side up!”

In the three weeks following the rally, Detroit police stopped trying to evict workers and failed miserably in the one exception.

This was the context in which the Supreme Court ruled on the constitutionality of the NLRA in April 1937. First, the justices upheld the NLRA as applying to interstate transportation and communication businesses — this was squarely within the Commerce Clause.

Second, and shockingly to many observers, they upheld the law’s application to the Jones & Laughlin Steel Corp., which employed 22,000 workers in manufacturing plants that had previously been seen as outside the scope of the Commerce Clause. The Court’s decision makes it clear how the strike wave had affected its legal reasoning:

When industries organize themselves on a national scale, making their relation to interstate commerce the dominant factor in their activities, how can it be maintained that their industrial labor relations constitute a forbidden field into which Congress may not enter when it is necessary to protect interstate commerce from the paralyzing consequences of industrial war?

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Sadly, this important history seems to be forgotten, even by many on the left.

Todd Tucker’s article “In Defense of Court-Packing,” published in June at Jacobin, for example, completely leaves out the sit-down strikes in his explanation for the Supreme Court’s historic 1937 ruling.

Instead, Tucker argues that the justices were driven by Roosevelt’s threat to “pack the Court” through legislation allowing him to appoint more liberal justices who would uphold his policies.

Roosevelt’s court-packing gambit likely did matter, as did his landslide re-election, but the president only felt confident in attempting it because of the primary threat facing the Supreme Court — and the entire ruling class — of a working-class upheaval.

Tucker’s historical argument leaves out the workers’ role in their own victory, and his conclusion about how to fight the right wing judiciary is similarly wanting.

Reflecting on the court-packing threat’s relevance to today, he argues that “with union density near an all-time low and climate catastrophe on the horizon, future lawmakers will need tools even more robust than what FDR was able to get through.”

It’s true that these are dire times and a Supreme Court with Brett Kavanaugh represents a long-term and severe threat to working people.

But rather than depending on the bureaucratic maneuvers by “future lawmakers” to hopefully protect our rights, we should be talking about how to support and expand the teachers’ strikes, protests against police brutality and abortion clinic defenses that are protecting those rights today.

The Supreme Court is a structurally undemocratic institution that gives tremendous power to nine unelected and unaccountable people.

But to paraphrase the radical historian Howard Zinn, what matters most is not who is sitting on the Supreme Court, but who is “sitting in” and who is marching outside the Supreme Court, pushing for change.