Abort the Court

Against the Current, No. 34, September/October 1991

The Editors

THURGOOD MARSHALL’S RETIREMENT from the Supreme Court—coupled with his probable replacement by an ultraconservative—is the most dramatic event in the Court’s turn to the right over the past two decades. Armed with a new ally on what Chicago Law School Dean Geoffrey Stone has aptly designated “the most monolithically ideological Court in the memory of any living person,” Chief Justice William Rehnquist now commands a solid majority with which to dismantle what little remains of the Warren Court’s liberal legacy. As The Wall Street Journal jubilantly proclaimed the day after Marshall’s announcement, “All lingering doubt has been erased: Conservatives have locked up control of the U.S. Supreme Court.”

The Court’s right-wing trajectory raises serious and challenging questions for socialists advocating the necessity of a break with the Democratic Party. Marshall’s replacement will mark the ninth consecutive justice chosen by a Republican president; Bush nominee Clarence Thomas—the second youngest nominee in 100 years—could be wreaking havoc on the Court for close to half a century. Those on the Left advocating an electoral strategy showcasing the Democrats as the lesser of two evils are arguably on their firmest ground when they suggest that a Carter, a Mondale, or a Dukakis would have nominated justices who were significantly more liberal than Justices O’Connor, Scalia, Kennedy, Souter and —pending the results of the confirmation process–possibly Thomas.

But while this manifestation of the “lesser evil” argument may initially seem compelling, it ultimately overestimates the effect of voting Democrats rather than Republicans into office—even on civil liberties issues where, so the argument goes, the discrepancies between the two parties are greatest As a consequence, such proponents of electoralism are at a loss to explain why so many justices during the past three decades have failed to fulfill the ideological roles assigned them.

Earl Warren, Chief Justice during those heady days when the Court outlawed desegregation and first articulated its support for affirmative action, was appointed by Eisenhower So was William Brennan, often cited as the architect of the Court’s liberal revolution.

The two most liberal members of the current Court—Harry Blackmun and John Paul Stevens—were appointed by Republican presidents Nixon and Ford, respectively. Blackmun, who wrote the landmark Roe vs. Wade decision and has eloquently defended it ever since, agreed with Marshall eighty-three percent of the time during the past term. Stevens, who also supports Roe and who agreed with Marshall eighty-four percent of the time, simultaneously areed with the Court’s most conservative justice, Antonin Scalia, only forty-one percent of the time—the lowest rate of agreement between any two justices.

Meanwhile, Byron White—a Kennedy appointee and the only remaining Court member chosen by a Democrat—agreed with Chief Justice Rehnquist during the past term seventy-nine percent of the time. An outspoken opponent of Roe, White also penned the infamous 1986 decision Bowers vs. Hardwick, which allowed states to criminalize gay and lesbian relations between consenting adults.

Whose Court…and Why

Which party nominates particular justices, then, has historically had relatively little to do with how the Court rules Conceptualizing Court appointments in terms of party politics represents a limited and ultimately mechanical understanding of the Court’s role as an institution, and, given those institutional parameters, how much ideological latitude the Court ever has, even at its most liberal. Designed by the men who drafted the U.S. Constitution as a guarantor of the status quo, the Court has, as a rule, rarely broken with that status quo.

From its initial embodiment of Alexander Hamilton’s insistence that “nothing but a permanent body can check the imprudence of democracy;” through its infamous 1857 Died Scott decision de-daring slaves property, down to Rehnquist’s acknowledgement this past term that the Court would be less justified in overturning judicial precedents protecting property than in reversing decisions protecting human beings, the Court has a long history of serving the ruling class at the expense of the powerless.

The Court transformed the 1890 Sherman Anti-Trust Act from a prohibition on monopolies into a tool against unions, earning the court an 1895 toast from a New York banker as “guardian of the dollar.”

The Court declared sit-down strikes illegal in the 1930s and upheld the incarceration of Japanese Americans in 1944 The year alter the Warren Court issued its landmark 1954 Brown ruling—which struck down the “separate but equal” doctrine justifying segregation—they reduced its potentially radical meaning to an admonition that segregated schools must be integrated “with all deliberate speed.” Ten years later, seventy-five percent of all Southern school districts were still segregated.

Even Justice Marshall—an embodiment of the Court at its most liberal—was careful to play by the rules. In August of 1973, he undertook the almost unprecedented step of polling the Court while it was not in session to cobble together an 8-1 override of Justice William 0. Douglas’ attempt to stop the U.S. bombing in Cambodia Douglas had ordered a stay on all bombing missions in an explicit effort to save lives until the constitutionality of Nixon’s illegal and immoral war could be determined. Nixon ignored the order, precipitating a potential constitutional crisis. Six houni later, Marshall had come to the rescue with his override; the bombing continued, unabated. Five days later, a U.S. B-52 “mistakenly” destroyed the Mekong River village of Neak Luong, killing 100 and wounding 300 men, women, and children.

1990-1991: Business as Usual

As this past term’s decisions made dear, Rehnquist & Co. is continuing the Court’s prescribed mission. Florida vs. Bostick dramatically expands the state’s prerogatives to conduct spot searches without a warrant Arizona vs Fulminante sanctions the use of coerced confessions in court Payne vs. Tennessee allows evidence concerning a victim’s character and family to be considered in death penalty cases. Coleman vs. Thompson strips death row prisoners of their right to habeas corpus appeals at the federal level—even though nearly forty percent of death-penalty sentences have been reversed in recent years due to serious constitutional blunders in state courts, often by inexperienced defense attorneys representing subjects who are too poor to hire expensive lawyers.

Other particularly noxious decisions rendered this past term allow criminal suspects to be held for forty-eight hours without a warrant; sanction lifetime imprisonment for drug dealers caught with as little as 1.4 pounds of cocaine or heroin; remove protections against discrimination for U.S. citizens working abroad for U.S. multinationals; end federal supervision of desegregation plans in school districts which have eliminated as much segregation as is “practicable”; reject the use of dearly relevant statistics in deciding whether race is a factor in decisions to execute African American defendants; make it nearly impossible for prisoners to protest against bad prison conditions; and refuse Native Americans the right to use peyote in religious ceremonies.

Finally, in its most infamous and flagrantly political decision, the Court ruled in Rust vs. Sullivan that a Reagan bureaucrat’s reinterpretation of Congress’ guidelines regulating abortion clinics is constitutional. Subsequently codified as an executive order, this fastand-loose reading of Congressional intent prohibits doctors from discussing abortion in federally funded clinics—even with women who specifically ask for such information and who have no access to other medical advice.

Rust vs. Sullivan continues the program of dismantling Roe “doorjamb by doorjamb” which Justice Scalia advocated in supporting the 1989 Webster decision. In the two years since Webster, Louisiana, Utah, and Guam have criminalized abortion. Seven more states have further restricted access to abortion. Andover 200 antiabortion bills are currently pending in state legislatures around the country. Hence it is only a matter of time before the Court hears a case providing it with the opportunity to overturn Roe.

The impending danger to what remains of women’s reproductive freedoms requires that socialists be absolutely dear about how they can most effectively struggle to both salvage the essence of Roe and, eventually, expand its parameters. As for influencing the particular parameters already established by the Court, such clarity means understanding that its more enlightened decisions were rendered during periods when progressive social movements were pressuring both the Court and the ruling class to give ground.

The Republican Nixon ended the Vietnam War and undertook the last significant expansion of the welfare state in response to the antiwar and civil rights’ movements. Republican-appointee Blackmun wrote Roe in partial response to a rejuvenated women’s movement Conversely, it was during Jimmy Carter’s Democratic interlude that the combination of a deteriorating economy and declining social movements produced a marked rightward turn—on issues ranging from labor legislation to spending priorities—from an undoubtedly more liberal president.

Reversing the Court’s priorities, then, has less to do with who we elect than with what kind of pressure we mount against whomever gets elected. Only the women’s movement can save and expand decisions like Roe—less by voting for pro-choice politicians than by transforming the terms of political discourse, the ideological environment, and the balance of forces within U.S. society. Through mobilizations aamst nominees like Thomas and decisions like Rust, the women’s movement can dramatically raise the political costs of anti-woman decisions and policies. Similarly, a strong antiracist movement can reverse the Court’s current assault on affirmative action. And a reinvigorated working class movement can prevent the Court’s impending rollback of minimum wage legislation.

Even the most liberal of Supreme Courts in the most politically tumultuous of periods will cede ground on these points slowly and reluctantly. But the Court is likely to cede no ground whatsoever if the progressive movement cedes its power to challenge the Court—not through a reliance on law or its elected and appointed caretakers, but through the people of this country whom those laws affect and harm.

Hamilton was right to fear the people and their common-sense commitment to democracy and a fair shake. It is our collective responsibility to reawaken that commitment—as well as the aspirations to a truly democratic society that Rehnquist and his minions are trying to put asleep.

September/October 1991, ATC 34