After the Supreme Court overturned Roe v. Wade and hampered Biden's ability to push through the Green New Deal and gun control legislation, Democrats are scrambling to change the composition and rules of the Republican-dominated Supreme Court.
The U.S. Supreme Court is often presented as a quasi-sacred institution that is free from partisan influence and protects the constitutional spirit. The beating heart of the founding fathers' vision. Its history, however, defies the myth. From its inception, it has been, unsurprisingly, both the target of bitter struggles between the factions in power and an indispensable weapon for the ruling class as a whole to impose their interests over those of the working class.
The Constitution, political parties, and class struggle during the formation of the United States
The U.S. Constitution being adopted at the Philadelphia Convention
In 1801, Thomas Jefferson won the presidential election. He was going to be the first Democratic-Republican president of the country that would break the eleven year streak of Federalist rule by Washington and Adams. Federalists and Democratic-Republicans were the partisan expression of the tensions between classes that had converged in the creation of the nation. Such tensions went so far as to imperil the signing of the Constitution in 1787.
The original founding document, the Articles of Confederation, did not allow the federal state to impose taxes, regulate commerce, raise an army, or establish a central bank. The Constitution, on the other hand, promised to correct these defects as well as establish an executive and judicial power. In other words, it would lay the very foundations of the State.
The advocates of the Constitution were linked to banking capital and to manufacturing and mercantile interests. They were already thinking in terms of the logic of a large single market on a scale equivalent to that of the large European states.
The opponents, who defended the sovereignty of each of the former colonies, were on the other hand linked to the then booming local markets. They represented the petty bourgeoisie and small agricultural landowners who did not participate in the great trade routes.
The slave planters, who produced for export but were tempted by the prospect of the opening of a domestic North American market, were divided between those who supported the Constitution and those who did not, although for the most part they tended to oppose it. They already sensed the contradictions that would inevitably arise between northern industrial development and their own interests, which would end in civil war. This war would in fact be a war of secession, an independence movement that would entrench the slave-owning bourgeoisie behind the sovereignty of their states as a way of defending themselves against the formation of a true national market, which demanded the end of slavery.
The sectors that supported the signing of the Constitution would end up forming the Federalist party, while the opponents, who made their support conditional on the Constitution's adoption of a Bill of Rights, would create the Democratic-Republican party of Jefferson.
For the Democratic-Republicans, the presidency was a tool to curb or at least accommodate the emergence of a market and a national bourgeoisie to the interests of the local property-owning classes. Limiting the power of the federal government was the obvious consequence and the establishment of the supremacy of the rights of states' institutions over those of the federal government became the rallying cry of the Democratic-Republicans.
For the Federalists, on the other hand, since their project was the creation of a unified national market, it was of paramount importance to establish a strong executive branch.
The ongoing battle around the idea of "limited government" had nothing to do with the conception of "individual liberty" even if it was couched in that language by Jefferson. The idea of "individual liberty" served to arouse distrust of the centralization inherent in any process of national [market] building.
In reality, the rhetoric of rights ideologically reflected the constant tug of war between the forces that wanted to broaden and homogenize the political bases necessary to drive capital accumulation by increasing the scale of the market (the Federalists), and the resistance of the propertied classes who feared the consequences of losing direct control over the colonial administration they had wrested from the British crown (Democratic-Republicans).
Naturally, in that framework, the rights of the citizen - that is, the abstract small property owner - were conflated with the rights of the states and contrasted with those of the federal government. That is why neither Jefferson nor any of his allies ever thought of workers, farm laborers, or slaves as citizens.
The Supreme Court enters the scene
In the early years of the state's existence, after the signing of the Constitution, the Supreme Court had played a marginal role. It convened in a borrowed room and dealt mostly with questions related to maritime transportation. But in 1803, two years after Thomas Jefferson became president of the United States, a political crisis would transform it into the pinnacle of the state apparatus.
John Adams, the Federalist president who preceded Jefferson, maneuvered towards the end of his presidency to reduce the number of justices on the Supreme Court and create dozens of new judicial positions in order to fill them with Federalists.
In 1801, the same year Jefferson became the nation's third president, John Marshall, who had been Secretary of State under President John Adams, became Chief Justice of the Supreme Court.
Marshall took it upon himself to finalize the formalities of the judicial appointments, but four of them were left up in the air. When Jefferson took office, he ordered the new Secretary of State, James Madison, to reject these four appointments. In addition, Congress, also controlled by the Democratic-Republican party, initiated impeachment proceedings against the Federalist judges. To make matters worse, in 1802 Congress overturned Adams' changes to the judicial system.
Marbury, one of the people who was denied a judicial appointment by James Madison, then decided to petition the Supreme Court for a writ of mandamus in order to regain his place in the Court. The outcome of the case, called Marbury v. Madison (1803), was significant because it was the first time the Supreme Court struck down an act of Congress.
That is, instead of ruling in favor of Marbury, the Marshall-led Supreme Court decided to use the case to demonstrate its ability to counterbalance the power of the legislative body.
At the same time, the Marshall Court established many other precedents that reinforced the role of both the Supreme Court and the federal government. For example, Martin v. Hunter's Lessee (1816) established the Supreme Court's ability to trump state courts and McCulloch v. Maryland (1819) established the superiority of the federal government over the states.
Indeed, the Federalists maneuvered to control and strengthen the judicial heart of the state at a time when the Democratic-Republicans dominated both the legislative and executive branches. The idea was to empower the highest court in the land in order to bolster the banks as well as combat the threat of decentralization that the presidency of Jefferson entailed.
This marked the first time that the Supreme Court served as a battleground between the different sectors of the ruling class.
The Supreme Court and the Civil War
Just as Marshall strengthened the Court in order to protect the interests of the sectors of the ruling class linked to the Federalist party, subsequent developments in the Supreme Court after his death also reflect shifting balances of power within the ruling class and the changing demands of national capital.
After Marshall, the Supreme Court was led by Roger Taney. Roger Taney came on the scene after the Democratic-Republican party split in two during Andrew Jackson's campaign between Whigs on one side and Democrats on the other. In reality, the same division within the ruling class that had been present since the War for Independence lurked beneath the new labels. The Whigs represented the industrial bourgeoisie and merchants and the Democrats represented the slave-owning planter class and the rural petty bourgeoisie.
Taney presided over Dred Scott v. Sandford, which concluded that American blacks have no citizenship rights, regardless of whether they are free or enslaved. It is also significant that this ruling also established that the Missouri Comprise, which admitted Missouri as a slave state while simultaneously prohibiting slavery in the remaining territories acquired through the Louisiana Purchase located north of the 36°30′ parallel, was unconstitutional. The Taney Court held that such property limitations could not be settled politically.
Throughout Taney's Chief Justice tenure, the majority of the presidents of the nation were Democrats. In fact, even the presidents who were Whigs during this period are known for their weak leadership or even for their links to the Democratic party. At the same time, this was also the period when the anti-slavery Republican party was formed.
Given that the Democrats dominated the courts, it is small wonder why Abraham Lincoln and the Republicans adopted a strategy to transform the courts during the Civil War.
Neither is it any wonder why the Democratic party would use the courts to advance its counterrevolution at the end of the Civil War.... This is the time of Plessy v. Ferguson which established that racial segregation was constitutional.
There are countless other examples. But the focus was not only on the tug of war over the powers of the states versus the federal government, nor on the privileges of the slave-owning bourgeoisie. There were areas of consensus such as... the need to contain the nascent workers' movement.
The Supreme Court against the working class
Repression of the 1877 railroad strike
The last decades of the 19th century and the 1900s were the years of soaring unionization, of the great strikes, of the rise of the socialist parties and of the birth of the IWW.... In every step of the way, the judicial apparatus supported and imposed the interests of the ruling class when the political apparatus gave way too much or too soon in the face of the class movement.
Throughout this period the courts systematically annulled state laws regulating minimum wage or maximum working hours. The judicial justification: such laws violate freedom of contract, i.e., the freedom of the individual worker to sell his labor power at whatever price he is offered, even if it falls below minimum subsistence.
The Supreme Court, however, would soon make it abundantly clear that the citizen did not have the freedom to oppose the state's participation in World War I or forced conscription. Basically, the judicial apparatus, with the Supreme Court at the helm, outlawed the immediate aims of the class movement.
Moreover, when World War I broke out, the unions were put at the service of conscription and the war economy. The courts then could count on union support for new rulings repealing state laws setting minimum wages.
But, when Franklin D. Roosevelt, who sought to accelerate the construction of a state capitalism through his New Deal, burst onto the scene, the Court had to change its way of interpreting certain laws.
From the "New Deal" to abortion, the Supreme Court develops new "legal theories" in order to adapt to changes demanded by national capital
Roosevelt signs the "Magna Carta" for Labor.
In order to build a state capitalism capable of turning the United States into a global hegemonic power and of overcoming the consequences of the crisis of '29, Roosevelt needed to homogenize conditions of exploitation through the industrial unions and federal regulation.
The Supreme Court resisted at first. But it succumbed to Roosevelt's threat to pack the court with an extra justice for each justice over seventy that had not retired. It was a threat which would have led to six vacancies in the Supreme Court, as well as forty-four in the lower courts. Small wonder why the Supreme Court abruptly changed its mind about the New Deal.
On a similar note, during the Cold War, the activists of the civil rights movement, which developed primarily through the courts, and feminism, which articulated the aspirations of petty bourgeois women, found themselves in a moment when their pleas for integration and social advancement were welcomed with open arms by a transforming national capital.
As the exigencies of national capital evolved, the courts in turn had to change its way of interpreting the law by coming up with new legal theories. For example, in Roe v. Wade, the Court concluded that the right to have an abortion was not expressly stated in the Constitution, but that it could be protected by the right to privacy it granted.
The Federalist Society and the conquest of the courts by the Republicans
Nixon, was the president of Roe vs Wade and Watergate, but above all the president associated with the demise of the gold standard and the oil crisis. These are the years in which American capitalism, since the end of the war, began to show the first signs of significant leakage. By the end of the decade a recession was ravaging the country's leading industries. Hundreds of thousands of autoworkers lost their jobs.
Ronald Reagan won the presidency in 1981 with the promise to to restore the economy by lowering taxes. He also promised to pass a constitutional amendment banning abortion if necessary.
It was the era of the Reagan Democrats, that is, Democrats who switched parties in order to vote for Ronald Reagan. Many of them were autoworkers from the Rust Belt, the industrial megalopolis that included centers such as Detroit or Pittsburgh.
Republicans understood that a significant part of the traditional base of the Democratic party had abandoned the party after it changed its position on abortion. In fact, the anti-abortion movement gathered sectors of the population that had nothing in common. It united the Southern petty bourgeoisie and Northern small farmers, corporate and academic petty bourgeoisie suffering the consequences of positive discrimination and workers who rejected the classist and racist politics of the pro-abortion and birth control movement, and also feared the consequences of feminism on the family and community ties they depended on to survive the crisis.
The discourse of values, of God, and the sanctity of life, served to make coherent a discourse that sought to unify, even in terms of religion, all these disparate groups. And just as the lawyers of the civil rights movement or the feminist movement sought to win cases that would ensure them social visibility, the lawyers who would join the Christian right would begin to do the same in the 1980s.
The Federalist Society was created in 1982. It began as a Republican student organization that brought together students and law professors. Antonin Scalia was one of them. The political implications and opportunities were immediately clear. The Federalist Society began to build a network in order to connect Republican law students to the courts.
If they succeeded, these law students would be guaranteed jobs as lawyers and, in time, could even aspire to become judges. At the same time, this would increase Republican influence on the courts.
The Supreme Court during this period was led by Warren E. Burger. Appointed by Nixon, he was the Chief Justice joining the majority in the Roe v. Wade decision. But with Ronald Reagan as president, Roe v. Wade was in danger of being overturned.
Reagan from the beginning of his presidency pursued an aggressive appointments policy: he appointed Antonin Scalia himself, then a professor and member of the Federalist Society, as a judge on the U.S. Circuit Court of Appeals. He also appointed Sandra Day O'Connor as an associate justice. And in 1986 William Rehnquist, the most conservative member of the Court, became Chief Justice. And then came the grand moment... in 1986, Ronald Reagan promoted Antonin Scalia to Associate Justice of the Supreme Court.
However, it was not enough. After all, Reagan was not able to appoint Robert Bork to the Supreme Court because of fierce Democratic opposition. In order to overcome the opposition, he opted for moderate Republican Anthony Kennedy. Hence the Justices' reluctance to overturn Roe v. Wade through the case of Webster v. Reproductive Services (1989) and the betrayal of Kennedy in 1992.
However, after the end of the Reagan presidency, George H. W. Bush appointed Clarence Thomas and Samuel Alito to the appellate courts. Both were members of the Federalist Society. When Justice William Brennan Jr. retired in 1990, Bush appointed Clarence Thomas as an associate justice of the Supreme Court.
The change in majorities continued slowly and inexorably after the Democratic presidency of Bill Clinton. George W. Bush appointed John Roberts, another Federalist Society member, as chief justice and promoted Samuel Alito to associate justice to replace O' Connor who retired. Brett Kavanaugh, another Federalist Society member, who would later be named associate justice under Donald Trump, was first appointed under George Bush as a D.C. appeals court judge.
And when Barack Obama came on the scene, he ended up appointing two moderate Democrats to the Supreme Court. Moreover, to circumvent the filibustering of the Republicans against the appointments he promoted, the Democrats changed the rules so that only a simple majority vote of the Senate was required to break the filibuster... a change later exploited by Trump to get three Federalist Society members - Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett - appointed as judges of the Supreme Court.
It is no wonder why the verdict of Roe v. Wade ended up being overturned. The fight was not only to achieve Republican dominance in the courts...but also to break the opposition of moderate Republicans by filling the courts with members of the Federalist Society.
Workers and the myth of the Supreme Court
Judges in general, and those of the Supreme Court in particular, are praised for their supposed impartiality. The judge is envisioned as a kind of monk in a black robe who studies in isolation in order to be protected from the corrupting influence of politics.
But, as we have seen, the Supreme Court is nothing other than an organ of direction of the state. And as such it has never ceased to subject to the battles between the different factions of the ruling class and their interests. Sometimes it is an open battle. At other times it is a long turf war. The composition of the Supreme Court is the result of political balances and struggles. Therefore, the role of the Supreme Court is political.
Both the state itself and the Supreme Court promote the myth of their supposed impartiality, but there is no impartiality in serving the law. To be the servant of the law means to actively defend the system that produces it by putting its needs ahead at every moment, balancing the contradictory interests of the different layers of the ruling class and interpreting the legal text according to the interests of the ruling class as a whole at every moment. In no moment are workers treated as anything other than a mass to be exploited and contained.
The Supreme Court upheld slavery so long as it was useful for national capital, condemned it when, after it became an obstacle to industrial development and provoked a war, it was time to build a national proletariat. But then it upheld segregation, essential for the Southern bourgeoisie to prevent the formation of a great labor movement... and again, it changed its position when the logic of the Cold War demanded that segregation be overcome.
We saw how it first abolished minimum wages and collective contracts, and then, when the bourgeoisie itself became aware of the need to reorganize itself around state capitalism, it turned 180 degrees and became the mainstay of the New Deal. With regard to women workers, the blows have not been any milder nor have the courts refrained in any way from following the compass dictated by the general interests of the system and its balance of power.
There has been only one focal point for the Supreme: when the hour of war comes, one must sacrifice oneself and go to the slaughterhouse without question in order to satisfy the needs of national capital.
The battles for judicial power and its outcomes have nothing to offer to workers. The struggle for a truly human world, without exploitation, borders and wars, without discrimination, oppression and violence cannot be waged in the courts but rather against the world and the classes that produce and impose them.