This article was originally published as Chapter 6 in Democracy and Class Society,” a book produced by the PSL in 2008, and is being republished in response to the recent news that the Supreme Court has decided to overturn Roe v. Wade.
“I give you, gentlemen, the Supreme Court of the United States—guardian of the dollar, defender of private property, enemy of spoliation, sheet anchor of the Republic.”
This was a toast to the Supreme Court given by a New York banker in 1895.
The United States Supreme Court is, according to the U.S. Constitution, the highest legal authority in the country. The court’s power is absolute and untouchable. The Supreme Court is portrayed as detached from society with the justices assuming impartiality, loyal to no one but the law.
Is it conceivable that the most powerful court in the richest country in the world could hold sway above the society in which it was created? Can anyone imagine that the most powerful corporations and generals in the world would agree to submit to the whims of nine people in interpreting the laws that they operate under?
To ask the question is to answer it. In fact, every law and every document that defines the character of the U.S. government and legal system have been created by those who represent a very specific sector of that society, namely the wealthy elite.
In fact, it is a basic tenet of scientific socialism that the legal system of a society forms part of the state—the courts, police, prisons and other institutions of coercion—to resolve the inevitable class antagonisms in society that arise from exploitation. These institutions exist to maintain the rule of the dominant class, a tiny minority of society, against the interests of the vast majority.
Under the most advanced form of capitalist rule, these laws and institutions are set up to make sure that the capitalists remain the highest authority of the land—without actually appearing to be rulers. The “democratic” framework of capitalist democracy hides the anti-democratic system of wage slavery.
Despite the liberal defenders of U.S. capitalism who like to point to a few specific instances where the Supreme Court has issued decisions that advanced the rights of women or African Americans, a look at history shows the Supreme Court to be one of the most consistently reactionary institutions of the United States.
The Constitution and the Supreme Court
The framers of the Constitution, all of whom functioned as the political representatives of white landowners, slave owners and merchants, wanted to establish a political form of government that best defended the private property of the elite in society. They wanted to have the ability to expand their wealth and power. During the three-month Constitutional Convention in 1787, the representatives hammered out a document designed for exactly that purpose.
The powers of the Supreme Court are broadly laid out in Article 3 of the Constitution, which specifies that the justices serve for life. Article 2 specifies that the president nominates the justices “with the advice and consent of the Senate.”
Few other guidelines for the Supreme Court were specified in the Constitution. Congress and the justices of the Court would create all other guidelines for the Courts, including the number of justices and the nomination of a chief justice.
The purpose of the Supreme Court is usually described in terms of the “checks and balances” framework of the U.S. political system. Its powers prevent Congress from passing “unconstitutional” laws and limit the president’s ability to carry out those laws in a way contrary to the Constitution.
In reality, the Supreme Court has been used to limit the democratic process in the interests of the ruling class. It ensures, for example, that no democratically elected Congress could ever pass a law that infringes on the right of the rich to own their wealth.
Defending privilege and racism
Racism has always been central to the growth of U.S. capitalism and the ruling class’ ability to rule. It is not surprising, given the predominance of slavery in the new United States, that the Constitution would specifically address and endorse slavery. The infamous “three-fifths compromise,” written into Article 1, counted the non-voting slaves as a fraction of a person when deciding how many representatives each state would have. In Article 1 Section 9, the Constitution banned states from limiting the slave trade for the first 20 years of the country’s history. And the Fugitive Slave Clause passed in 1793 forced states to return escaped slaves to bondage.
This was the law of the land for nearly the first hundred years of U.S. history—the law the Supreme Court was responsible for upholding.
In the 1857 Dred Scott v. Sandford case, the Supreme Court issued its most clear ruling upholding slavery. Dred Scott was a slave suing for his freedom. The Supreme Court ruled that because Dred Scott was Black, and Black people were not “people” but rather “merchandise,” he was not considered a citizen, and therefore he could not sue in any court for his freedom.
The decision went further, requiring states that had prohibited or outlawed slavery to honor slave owners’ right to bring their “property” into that territory. In effect, by recognizing slave owners’ property rights, slavery became the law of the land, despite the emerging divide between “free states” and “slave states.”
The Dred Scott decision was part of the campaign by the slave-owning class to extend the power of slavery into non-slave states. This was the underlying political and legal struggle that eventually led to the Civil War in 1861, when the Southern states seceded from the union and declared a new nation based on -universal slavery.
John Brown’s attempted armed uprising at Harper’s Ferry, West Virginia in 1859, followed by the election of Abraham Lincoln in 1860, convinced the slave owners that their efforts to extend the political control of the slavocracy on a national basis were doomed to fail.
The 14th Amendment to the Constitution in 1868 is usually seen as one of the three amendments that arose from the Civil War. The 13th Amendment specifically banned slavery, the 14th declared all persons “born or naturalized” in the United States as citizens, and the 15th banned race-based voting qualifications. The 14th Amendment further declared that no state can “deprive any person of life, liberty or property without due process of law.”
The hopes that the legal remnants of the Civil War would open a new era of democracy and economic well-being for the millions of former slaves were smashed by two developments. First, U.S. capitalism exploded, with large and powerful corporations and trusts emerging on the scene.
By 1886, Howard Zinn writes, “the Supreme Court had accepted the argument that corporations were ‘persons’ and their money and property was property protected by the due process clause of the 14th Amendment.”2 In fact, between 1868 and 1912, the Supreme Court based 604 decisions on the 14th Amendment. Of those, 312 dealt with corporations. In the mere 28 that dealt with the rights of African Americans, the Supreme Court ruled against the African American appellant in 22 cases.3
Second, the Northern political establishment, anxious to absorb the defeated slavocracy as a junior partner, ended the progressive Reconstruction era in 1877 and unleashed a wave of Ku Klux Klan terror and Jim Crow apartheid. How would the Supreme Court interpret the fruits of the liberation of the slaves, the 13th, 14th and 15th Amendments, in the face of the new wave of racism?
In 1892, Homer Plessy—who had one Black Creole grandmother—decided to challenge the racist separate-car laws segregating passenger trains. Working with the Citizens Committee of African Americans and Creoles, Plessy bought a railroad ticket in Louisiana, sat in the “whites-only” car, and told the conductor that he was 7/8 white. He was arrested on the spot.
In 1896, the Supreme Court ruled in the case of Plessy v. Ferguson that “separate but equal” facilities for Black riders on railroad cars were legal. Jim Crow got its legal stamp of approval.
It didn’t stop there. During World War II, President Franklin Roosevelt signed an executive order to round up over 110,000 Japanese Americans and place them in concentration camps. The Supreme Court found the president’s order to be constitutional in the 1944 case of Korematsu v. United States.
A ruling class who’s who
In order to reach the pinnacles of power, Supreme Court justices have to prove their loyalty to the ruling class. Most often, this means that their family and other ties to the ruling class must be extensive and tested.
The first chief justice of the Supreme Court, John Jay, was appointed by George Washington in 1789. Through birth and marriage, Jay was related to some of the wealthiest families in the United States. He believed, “Those who own the country ought to govern it.”4 Jay was a strong advocate for strict property requirements for voting rights.
After Jay retired, Washington appointed John Rutledge from South Carolina. Rutledge was a delegate to the Constitutional Convention and was an adamant defender of slavery. His nomination was turned down by the Senate, but he did serve a few months as chief justice.
In 1937, the liberal Franklin D. Roosevelt appointed Hugo Black as Supreme Court justice. In the 1920s, Black was a member of the Ku Klux Klan in Alabama. While he always claimed he was never an ideological adherent of the Klan, biographer Roger K. Newman notes that, “Black could not have had any illusions about the group he joined. Illegal Klan activities were part of daily life in Birmingham.”5
The current chief justice, John G. Roberts, was appointed by George W. Bush in 2005. A Bush-type ideologue, he is on the record against women’s reproductive rights, affirmative action and voting civil rights. Referring to the Roe v. Wade decision of 1973 legalizing abortion, Roberts said the decision “was wrongly decided and should be overruled.”
Not immune to mass struggle
But what about the cases brought before the court that are ruled in favor of the masses? What makes the Supreme Court hand down a progressive decision, as it has done on occasion?
The Supreme Court rules in favor of the people when the ruling class fears that it must make concessions in order to maintain its overall position of domination in society. It has made such concessions in the face of mass movements in the United States, as well as in response to revolutionary developments around the world.
The 1954 Brown v. Board of Education ruling abolished the Plessy v. Ferguson “separate but equal” ruling, ordering the desegregation of schools in Topeka, Kansas. At the time, civil rights organizing was picking up momentum when the Chinese Revolution was inspiring decolonization struggles around the world. The U.S. government feared losing much more than an end to “separate but equal.”
But it was not the Supreme Court that dismantled the racist apartheid state that existed in the southern half of the United States. It was the explosion of the civil rights struggle, the largest mass movement in U.S. history, which led the Congress to pass the 1964 Civil Rights Act and the 1965 Voting Rights Act. The adoption of affirmative action as a mechanism to remedy centuries of discrimination came during the tenure of the racist Nixon administration, because that struggle continued to gain momentum in the streets and workplaces throughout the United States in the late 1960s.
It was the Supreme Court that began the process of undoing affirmative action with the 1978 Bakke decision, which claimed that white people were the victims of “reverse discrimination” when a previously all-white medical school allowed for even minimal guarantees of admissions for Black students. The civil rights and Black liberation movement had waned by the mid- 1970s. Free from mass pressure, the Supreme Court not only attacked affirmative action but also restored the racist death penalty in 1976 .
The effect of the mass movement on the court was evident when it came to abortion rights as well. The 1973 Roe v. Wade ruling guaranteeing women the right to control their own bodies was made by a 7-2 vote during the Nixon administration. It was the sweeping radicalization and mass protest of the grass-roots that made it possible. Notably, the chief justice at the time was a conservative Nixon appointee, Warren Burger.
Every election year, many people weigh the possibility of what kind of Supreme Court justice a candidate might nominate if they had a chance. The power of the president in making lifetime appointments to the most undemocratic body in U.S. politics becomes a key component of the “lesser of two evils” argument that social democrats use to corral voters into the Democratic Party.
Unfortunately, the “lesser of two evils” argument ends up contributing to the very problem that it aims to address. By channeling people into a political system that is by its very construction anti-democratic, this argument corrodes any effort to build a powerful, militant people’s movement.
The only way reactionary rulings can be countered is by strengthening and expanding a people’s movement independent of the ruling class and its twin parties of war and exploitation. Any political leader or organization that tells people to wait for the next president to appoint a justice that is sympathetic towards women’s rights, African American rights or workers’ rights is foolhardy.
Supreme Court decisions reflect the balance of forces in the class struggle, both in the United States and internationally. Whatever decisions the courts issue, they reflect the interests of the capitalist class, not the working class.
The surest antidote to the accelerating right-wing judicial assault on unions, civil rights and women’s rights, free speech and due-process guarantees is to be in the streets confronting the powers that be, including the gowned corporate lawyers and right-wing politicians who constitute the Supreme Court.
Appendix: Supreme Court upholds racism, 1974-present
The beginning of a trend
Much is made of the Supreme Court’s 1954 Brown v. Board of Education ruling desegregating public schools. Less often mentioned are subsequent rulings rolling back the implementation of steps against racism in education.
In 1974, the Supreme Court began a trend toward reversing the civil rights gains made in the wake of Brown v. Board of Education. The Milliken v. Bradley case gave the green light for courts around the country to roll back desegregation.
Following Brown v. Board and the first victories of the civil rights movement in the mid-1960s, African Americans won a number of legal rights including court-mandated desegregation in a number of cities. Black families fought for desegregation not out of any great desire to be closer to white families, but rather to gain equal treatment and resources for their children in school. It was an effort to get out of the one-room schoolhouse, as it were, and into the brick schoolhouse.
In 1971, U.S. district judge Stephen Roth issued a desegregation ruling dealing with the Detroit public school system. Because of the phenomenon of so-called “white flight,” with white families moving out of the city to the suburbs, the school system served primarily African American children. “How do you desegregate a Black city, or a Black school system?” Roth asked.
Roth proposed a plan. He noted there were 53 suburban Detroit school districts within eight miles of the city limits. Roth proposed joining those districts with the Detroit public school system, creating a metropolitan school district. In addition to providing a realistic integration plan, Roth’s ruling would have expanded the tax base of the school district, helping to equalize funding in a situation where wealthier taxpayers lived outside the city limits.
The 1974 Supreme Court Milliken v. Bradley ruling, however, struck down this plan. The highest court in the country stepped in to “save” the suburbs.
The Milliken ruling had been the natural result of the direction of civil rights law up to that point. Roth’s ruling went beyond racial desegregation. In the words of distinguished legal scholar Judge J. Harvie Wilkinson, the ruling was “trying to mix classes.”1 The proposed reform began to verge on both infringing on one of U.S. capitalism’s main means of dividing the working class—white middle-class privilege—and on becoming a mild form of redistribution of wealth. The highest court had to intervene. Imagine children of the rich attending school with poor—even African American—children!
The Milliken ruling became the first of many legal blows to the gains of the civil rights movement. The 1978 Regents of the University of California v. Bakke decision rolling back affirmative action efforts in college admissions all the way through the 2003 Gratz v. Bollinger case involving the University of Michigan continue to deny the majority of African American students access to the country’s more privileged universities.
They highlight the Supreme Court’s function of blocking gains made by the mass movements.
1. Howard Zinn, People’s History of the United States, Revised and Updated Edition, (HarperCollins, New York, 1995), p. 254.
2. Ibid., p. 255.
3. J.S. Allen, Reconstruction: The Battle for Democracy, (International Publishers, New York, 1970), p. 84.
4. P. Irons, A People’s History of the Supreme Court, (Penguin Publishers, New York, 2000), p. 87.
5. R. Newman, Hugo Black: A Biography, (Pantheon Books, New York, 1994), p. 93.
6. Bush nominates Roberts to Supreme Court, (CNN.com, July 20, 2005).
7. J.H. Wilkinson, From Brown to Bakke: The Supreme Court and School Integration 1954-1978, (Oxford University Press, London, 1979), p. 220.