Supreme Court Chief (in)Justice John Roberts has dropped the pretense. Until now, he tried to maintain a degree of credibility that the Supreme Court was apolitical and non-partisan, that its decisions were based on "the rule of law" and the US Const…
Supreme Court Chief (in)Justice John Roberts has dropped the pretense. Until now, he tried to maintain a degree of credibility that the Supreme Court was apolitical and non-partisan, that its decisions were based on "the rule of law" and the US Constitution alone. His recent decision to give Trump a "get out of jail free" card discards all of that. The decision is based on no law whatsoever, nor is there anything in the Constitution to justify it. There is nothing to indicate that that was the Constitution framers' "original intent", which Roberts and the MAGA majority claim to care so much about. The decision, along with the months' long delay, is a transparent step towards putting Trump back in office by hook or by crook.
In abandoning the "impartial" pretense, Roberts is announcing that he 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.
To see where this can lead, we have to see how it developed. That includes the development of the legal theories which cloak the political aims.
We actually have to go back to the dawn of the 20th century in the United States. Matthew Josephson gives a marvelous description of that era in his book The Robber Barons. That book is about the great capitalists of that day - the Fricks, Rockefeller's, Gould's and Mellon's. Josephson describes how they would travel to state capitals with a briefcase stuffed with cash for disbursement to various legislators in order to get a bill they wanted passed. The robber barons were free to do whatever they liked as long as they paid for it. They were also free to deal with workers however they liked, unless their workers resisted effectively enough.
US capitalism was completely unregulated.
Rise of "administrative state"
Minneapolis Teamsters Strike of 1934. Led by socialists, it convinced FDR that the government had to regulate society.
Then the Great Depression came along. This was the greatest economic crisis US capitalism had ever experienced, and with it came an extreme radicalization of the US working class. In 1934 in three great and extremely militant strikes - the Toledo Auto Lite strike, the Minneapolis Teamsters' general strike and the San Francisco general strike. Also, both the Socialist and the Communist Parties were developing a working class base of hundreds of thousands.
These developments led FDR to conclude that the government had to intervene, it had to regulate the economy to some extent and it had to regulate labor relations. The Supreme Court (in)Justices of that day were stuck in the past. They ruled that one New Deal act after another was unconstitutional. There was a rising call for FDR to "stack" the Supreme Court with additional judges but several of the older ones left the bench first and the newly composed Supreme Court acceded to the New Deal.
That's how the "administrative state" was born. An article in the NY Times explained: "The goal was to find a practical way to impose some order on an economy that had grown increasingly complex during the Industrial Revolution…. This governing structure has become the way that American society imposes rules on powerful business interests across a range of issues…"
In bringing a degree of order out of chaos, the "administrative state" has actually benefited the capitalist class. But the capitalists only accepted it under the threat of the working class. In fact, a layer of capitalists never did accept it. They thought they could return to the laissez faire state of affairs prior to the New Deal. In the following 100 years, other changes occurred that weren't to their liking. These included the partial liberation of women, the end of formal segregation, and the partial recognition of LGBTQ+ people's rights. However, these dinosaur capitalists always were in a small minority.
Bork testifying at his confirmation hearing. His views were rejected at that time.
Robert Bork A figure who really represented the view of that wing of the capitalist class was a man named Robert Bork. He was born in 1927 and came of age in the reactionary era of the 1950s. It was Bork who first developed the legal theory that the Constitution must be interpreted by the "original intent" of its framers. That is the prevailing legal theory today. But we are getting ahead of ourselves. Bork was the third in command in the Department of Justice under Nixon when Nixon moved to fire special prosecutor Archibald Cox. When the top two in that chain of command refused to fire Cox, they themselves were fired, and Bork became top dog and did Nixon's bidding for him. Bork disguised his political role under the "unitary executive" legal theory. That theory holds that the president holds total and unchecked power over the executive branch and can do whatever he likes in that branch. In 1987, Reagan nominated Bork for the US Supreme Court. However, Bork's views were considered so extreme that the Senate did not confirm him. Those extreme views included his theory of original intent, for which he was the earliest main advocate.
The framers of the US Constitution. They were slave holders, bankers and rich merchants and all white and all male. Yet their views are supposed to rule us today.
"Original intent" and political goals That is the theory that all Constitutional issues must be settled based on the supposed original intent of the framers of the Constitution. The "original intent" theory collapses on its face when examined. Thomas Jefferson, who played an important role in the writing of the Constitution (although he was not at the Constitutional Convention) wrote "On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation." So even he did not believe in original intent. More to the point, the framers of the Constitution did not believe women should have equal rights. They believed in slavery. Maintaining that status quo was part of their original intent. The "original intent" legal theory aims to return to those days. It is a culture war before the term was even coined.
The web site "ballsandstrikes.org" explained it: "In order for right-wing ideology to be digestible to the public, it needs to be cloaked in the language of legal technicality. Issues of politics and principle—from civil rights to voting rights and reproductive freedom—must be carefully reframed as matters of rote Constitutional interpretation. Conservatives' concern isn't about abortion, it's about the scope of the 14th Amendment. They aren't trying to stop people from voting, they're protecting states' rights to control their own elections. For every reactionary political position, they built a conveniently adjacent legal doctrine [emphasis added]."
This is certainly true for Bork, who believed that a woman's place is in the kitchen. In the decades that followed his failed nomination to the Supreme Court, Bork also expressed opposition to ending segregation, ending laws banning contraception, and mandating gender equality in general. Bork wrote that forcing a business owner to serve people of color is an act "of unsurpassed ugliness." He was also aggressively homophobic. In other words, Bork was waging a rearguard culture war. In order to disguise these views, Bork developed the theory of original intent of the framers of the Constitution.
In other words, Bork's "original intent" theory was simply a cover for his reactionary social and political views. In rejecting his nomination, the Senate recognized that a return to the bad old days was not possible… at that time. That includes rolling the clock back on the freedoms won and ending the "administrative state". The present day domination of the legal theory of "original intent" represents a view among some capitalists that exactly such a return is possible.
Top union leaders hanging out with then-President Trump. Their craven cowardice has boosted the confidence of the capitalist class.
Weakening of U.S. working class boosts reaction There were several developments that allowed them to think that. We will go more into depth on the issue in a future pamphlet. For the moment, however, we should consider the main factor, which is the crisis of the US working class. The class has been held in restraint by its own leadership - the entire union leadership - for 75 years now. They have led the working class into defeat after defeat. With the defeats came confusion and even demoralization. The NGO's have also played their part. Linked in one way or another to the Democratic Party (as are the union leaders), the NGO's have done their level best to ensure that no protest movement develops its own working class base. When they cannot prevent a movement in the streets from breaking out, they jump to the head of that movement in order to ensure that it ultimately peters out without any lasting rank and file organization remaining. Overall, the NGO's and the union leadership channel everything into court challenges and support for the Democratic Party.
This has given the old dinosaur capitalists added confidence. There is also a younger wing of capitalists. Many of them are in the tech industry. They include the likes of Peter Thiel and Elon Musk. These capitalists have never seen any sustained movement, least of all a working class movement, challenge their power. They know nothing about history. So, why not eliminate the administrative state altogether? That is what the Supreme Court moved towards in its rulings of June 27 and 28. Taken together, these two rulings make it nearly impossible for regulatory agencies to establish and enforce workplace health and safety rules, environmental protection, etc. This has been one of the main aims of Trump for years now. The fact that the dismantling of the administrative state will create confusion and even chaos doesn't bother the MAGA crowd. In fact, chaos benefits reaction.
So we see how the MAGA culture war and the dismantling of the administrative state go hand in hand.
"Unitary executive" legal theory If the theory of original intent is simply a disguise for reactionary political aims, then the further extension of these legal theories is a disguise for even greater aims. We saw that Bork also believed in the "unitary executive" legal theory. Bear in mind that the signal issue for that view is the idea that a special prosecutor is unconstitutional. Now deceased Supreme Court (in)Justice Antonin Scalia believed in the "unitary executive" theory. Clarence Thomas, in his concurring opinion on presidential immunity, reopened that view for consideration, including the view that the special prosecutor position is unconstitutional. In doing so, Thomas has opened the door to Florida Judge (and Trump ally) Aileen Cannon throwing out the entire classified documents case based on what Thomas wrote. In fact, back in 1999 it was then-attorney John Roberts who argued the case for Bush that a recount of ballots in Florida should be halted. This argument was accepted by the Republican Supreme Court, resulting in Bush taking office. Roberts's argument was based on the "unitary executive" legal theory.
"Independent State Legislature" theory
Napoleon "Bonaparte" Trump. That is what the Supreme Court is encouraging.
The "unitary executive" theory is gradually working its way into acceptability, just as did the "original intent" theory before it. It is still an outlier, but not totally so. What's next will be the even more radical theory. That is the "independent state legislature" theory (ISLT). This theory bases itself on the Constitutional clause which says that the "time, places and manner" of holding elections shall be determined in each state by each state's legislature, except that the Congress may make changes in the elections. Advocates of ISLT interpret the relevant Constitutional clause to mean that state courts have no say in what the legislatures do in, for example, redistricting (gerrymandering). But the theory goes even further. An article in the New Yorker explained that "A still more drastic version of the theory—not one directly at issue in the case, but one that might follow from its logic—could allow a legislature to award its state's Electoral College votes to any Presidential candidate, even one who lost its popular vote." In fact, that was the basis of several of the Republican state challenges to the 2020 presidential election outcome. The theory sounds so extreme that one might think it can never move into the mainstream. Again, the New Yorker explains that ISLT was "a line of legal reasoning that scarcely existed twenty-five years ago but has since traveled from the fringes of legal discourse to the centers of power," just as has the "original intent" theory. Central to advancing both theories, by the way, is a man named Leonard Leo, who is close to both Clarence Thomas and Thomas's sponsor, Harlan Crow. Leo has been central to packing the federal judiciary with anti women, right wing judges.
Formally, the Supreme Court rejected the independent state legislature theory in the 2023 case of Moore v Harper. This was a case about "redistricting" (really racist gerrymandering) in North Carolina. But the ruling was not open and shut. In the first place, (in)Justices Thomas, Gorsuch and Alito voted the other way. They were open to the ISLT theory. Others, too, have indicated being open to the theory.
Again, to emphasize: All these legal theories are just cloaks to cover over political goals. In this case, these are the goals of MAGA. The advance of these theories is simply a recognition that MAGA has become more powerful, that it's closer to reaching nearly unchallenged power.
Trump's wingman, John Roberts
John Roberts Until recently, Chief (in)Justice John Roberts was concerned over how the general population viewed the Supreme Court. He saw it as being important that there was at least some credibility to the view that the Court was impartial, that it simply ruled based on "law". His having written the immunity decision, which says that the president can with impunity commit any crime he or she likes while in office, his having delayed that decision for months and months… all this indicates that he no longer has that concern. The reason is that he now feels confident that Trump and MAGA can smash down all barriers and take power this coming January, so who cares what the non-MAGA crowd thinks? They can't do anything anyway, is his thought process.
Non-MAGA Supreme Court (in)Justices: the loyal opposition The non-MAGA three person minority on the Court (Kagan, Jackson and Sotomayor) have proven themselves to be the loyal opposition, more dedicated to maintaining the "impartial" myth of the Supreme Court than doing anything effective. If they really wanted to combat the MAGA super majority, they would have been traveling up and down the country giving speeches against that majority, explaining exactly what they are up to, explaining this history, revealing all the inner secrets of the MAGA majority, and mobilizing an opposition. There is no law prohibiting this. There is only the official protocol, which protects the MAGA majority. And even if there were such a law, so what? They are nothing but a fig leaf as things stand.
Liberal loyal opposition to MAGA The same goes for the capitalist media and the Democrats including their "progressive" wing. They are doing nothing to mobilize workers and youth. Instead, they are propping up a walking, talking cadaver for president. Nor are the NGO's doing anything significant. The capitalist media plays its role also. It takes these legal rulings seriously instead of explaining that they are nothing more than a cover for a power grab. And as for the union leadership…. I forgot what I was going to say because there is nothing to say. They are so AWOL.
Whether we advocate voting for Biden or not, nobody with eyes to see can deny that Trump and MAGA have an excellent chance of sweeping into office this January. Whether they take the majority and the presidency, they will not go away.
And yet, despite everything that has happened in the Supreme Court, the Democrats and the NGO's and union leadership are still planning to channel resistance to Trump and MAGA into court challenges! If they were serious about resisting the MAGA Supreme Court, Biden would immediately appoint four additional Supreme Court justices. To the Republicans' threat that they will do the same, we say, "go ahead. Pretty soon there would be so many (in)Justices on the Supreme Court that the entire body would be paralyzed. Great! It was a reactionary institution from its start." Also, every single one of the MAGA justices lied when they testified at their Senate confirmation hearings. They all claimed that they believed in following precedent. In case after case, they have broken from precedent. They should all face criminal charges for perjury. There is not a hint of any of this from a single prominent Democrat. Like their representatives on the Supreme Court, the Democrats are more concerned with maintaining the illusion of the "rule of law" and a non-political Supreme Court.
Practical conclusion We must draw a practical conclusion. That conclusion can only be to start to build local Resistance Committees from the ground up. We cannot wait for the recognized leaders - the NGO's, the professors, the union leaders, the preachers - to do it. We have to take the initiative. We can start by organizing house meetings for our neighbors, friends and family. We can seek to organize in church groups, working class schools, workplaces and in our communities. A central focus can be towards the unions, but not by trying to win support of this or that "progressive" union leader. It will have to be through reaching out to individual concerned and courageous members.
We should have no illusions about the current mood. The 75 year war against all the best traditions of the US working class - a war waged first and foremost by the union leadership - has had its effect. A great shock is required to reverse this effect. Such a shock is coming in one form or another. We can start to organize now to help speed up the process of building a working class based resistance and to help provide some clarity along the way. Given the disastrous global crisis that is descending upon us, what alternative do we have?
Supreme Court Chief (in)Justice John Roberts has dropped the pretense. Until now, he tried to maintain a degree of credibility that the Supreme Court was apolitical and non-partisan, that its decisions were based on "the rule of law" and the US Constitution alone. His recent decision to give Trump a "get out of jail free" card discards all of that. The decision is based on no law whatsoever, nor is there anything in the Constitution to justify it. There is nothing to indicate that that was the Constitution framers' "original intent", which Roberts and the MAGA majority claim to care so much about. The decision, along with the months' long delay, is a transparent step towards putting Trump back in office by hook or by crook.
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