Supreme Court Evolution, an OtherWords cartoon by Khalil Bendib
As recent books and law review articles have confirmed, the Supreme Court has been moving to the right since the Nixon Administration. Abetted by Republican politicians, anti-abortion advocates and organizations, and conservative legal entities like the Federalist Society, this rightward trend has led to legal decisions that have undermined prior gains in overcoming racial and gender discrimination and in protecting the environment and labor rights made under the 1950s and ‘60s Warren Court. The rightward drift has been an important factor in the rise in inequality in the US and in creating a less democratic society. With the election of Donald Trump, however, the rightward drift of the Court is now secure enough that the even more ambitious goal of reversing the egalitarian and social solidarity policies and programs of the New Deal is now possible. Worse, with the addition of Justices Neil Gorsuch and Brett Kavanaugh, the Court’s present conservative majority has evidenced a willingness to support the most heinous elements of Trump’s white nationalist agenda and his proto-fascist drive to remove himself from constitutionally defined checks and balances.
Let’s focus first on that white nationalist agenda. The current Supreme Court majority has gone out of its way to uphold policies that have done so much harm to refugee and migrant populations, allowing the Trump Administration to send asylum applicants back to Mexico while awaiting hearings, withholding federal monies from sanctuary cities, and denying immigrants resident in the US public assistance and related benefits.
Then there are the Court’s attacks on workers and their families. In the 2018 Janus v. AFSCME decision, the Court undermined union strength by ruling, in contrast to past precedent, that bargaining unit members could not be required to pay a “fair share” service fee if they refused to join the union. This meant that non-members could become free-riders, essentially benefiting at no charge from increases in benefits a union secured for the bargaining unit.
With Justice Gorsuch writing the majority opinion in a case involving the rights of tens of millions of private sector employees, the Court ruled for the first time that workers may not band together to challenge violations of federal labor laws, and allowed companies to require employees to sign arbitration clauses waiving their right to join class-action civil suits. This decision eviscerated the employment discrimination claims of 1.5 million women. It was also a real blow to creating a level playing field for resource-limited working-class plaintiffs who cannot afford the costs of pursuing litigation on their own.
It is also highly possible that the conservative majority will further restrict, if not fully challenge, a woman’s right to an abortion.
We have also seen the Court upholding administration attacks on the LBGTQ community, including upholding the ban on transgender individuals in the military. Even more damage could be done if the Court accepts the Trump Administration’s amicus brief argument in a recent case suggesting that companies should be allowed to discriminate against LBGTQ people.
With regard to voting rights, the Court has sided with states—typically but not exclusively in the South—to impose burdensome ID and related requirements on their citizens. People with limited incomes, usually residing in poor working-class and minority communities, are often not able to afford the fees associated with securing items like driver’s licenses. The conservative jurists have likewise refused to intervene in cases challenging political gerrymandering, giving states the benefit of the doubt as to the motives behind the drawing of district lines, even where the evidence clearly suggests that that motive is to gain political advantage. Finally, in the midst of a coronavirus pandemic, the Court majority, in an unsigned opinion, refused to support an extension by even a few days of the deadline for submission of mail ballots in a Wisconsin primary election. This decision supported the arguments of Republican legislators who hoped to keep the numbers of Democratic voters down in contested state and local elections. Ironically, the refusal to extend the window on considering mail-in ballots did not result in a downturn in Democratic voters; instead, robust voter participation occurred—at a terrible cost. As many as six coronavirus cases have been linked to in-person voting in Wisconsin.
Corporate power has also been strengthened by the Court, in a series of tort reform cases that have reduced corporate liability for defective and injurious products. Important constraints on corporate misbehavior put in place after the 2008 recession may also soon be undermined. Prior to coming onto the Court, Justice Kavanaugh cast doubt on the constitutionality of the Consumer Financial Protection Bureau. A pro-business bias at the Court is suggested by data from the 2017-18 session, in which the US Chamber of Commerce joined ten cases and was on the winning side in nine of them.
Perhaps most ominously, in deciding these and future cases, the conservative majority on the Court has been developing two lines of reasoning that challenge the ability of the federal government to implement and enforce a wide range of social and environmental legislation, some of which dates back over 100 years to the Progressive Era (e.g., wage and hour laws). Although once thought of as entirely fringe legal views, even in conservative circles, the majority of the Court has indicated its support of such views in recent opinions and public statements.
One line of reasoning challenges the ability of Congress to delegate to federal departments and agencies the authority to write regulations and rules. As we all know, laws absent means and mechanisms of enforcement are useless. Since the earliest days of the nation, regulations and rule making have been the main enforcement vehicles available to the federal agencies charged with administering federal law. Indeed, deeply disturbed by the conservative majority’s recent decision declaring Congress’s delegation of rulemaking to the Department of Justice to be unconstitutional, Justice Elena Kagan wrote that such a decision meant that “most of government is unconstitutional.”
In the other line of reasoning, labeled the justiciability principle, the Court looks to be ready to allow Trump to sidestep Congressional checks on his power. The principle has rarely been cited in previous Court decisions, but it has recently become one of Attorney General Bill Barr’s rationales for avoiding judicial review of the Administration’s actions. The principle suggests that the Court should not be involved in purely “political disputes” between government branches. In a recent directive to the parties involved in the House of Representative’s efforts to access Trump’s tax records, the Court requested more documents addressing the justiciability argument from the lawyers. If this principle becomes the favored means for sidestepping adjudication of disputes between Trump and Congress, Trump is no longer President: he becomes King.
So what is to be done? The conservative majority will stand even if the Democrats win the presidency and the Senate, until they have the opportunity to replace retiring judges. But, as some have pointed out, there is sometimes division even among the conservative majority (think Justice John Roberts’ position in the 2012 case upholding the Affordable Care Act). Adding strong, dissenting outside voices may increase the possibility of breaks, however rare, in the conservative ranks. Ultimately, however, not much will change until such time as there is an increase in the number of justices and limitations on their terms.
Pat Simpson, Emerita Professor, Loyola University, formerly taught in the Labor Education Program, UIUC. A longtime labor and social justice activist, she is currently a member of the Chambana Democratic Socialists of America (DSA) and of the Quintessential Poets.
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