The Supreme Court Is an Emblem of an Administrative Crisis of State; What does it mean for Socialists?

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As the Supreme Court has become more ideologically conservative, we have seen them make decisions on questions that go highly contrary to public opinion. We have also seen a surge in scrutiny surrounding the ethical standards the Court is made to live up to. Much of the criticism has come from liberal and progressive voices calling attention to the disregard for previous court precedents, public opinion, and balance of power. There is validity in these arguments if your political goals do not require you to extend beyond the liberal republic as the form of government. But we are socialists.

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We are witnessing an institutional reaction to a political crisis. Specifically, the issue of the Court being in a position where political gridlock has made it one of the only avenues for policy decisions to be made. Congress has been in a stalemate preventing much policy making at all, and presidents on both sides of the aisle find it difficult to use executive authority to push policies without Congressional votes. So in this situation, policy questions can only go to the Judicial branch to be dealt with more or less definitively (in that the question becomes legal precedent that still lacks the legal strength of an actual law).

           

As socialists, we have to ask how this crisis serves the socialist political goal of the seizure of state power for the working class. Liberals and progressives have so far focused on what the liberal republic must do to reify the system of checks and balances and win back public trust. Conservatives see the recent decisions as placing powers in Congress’s hands when specific designations of governing authorities aren’t named in law, and therefore consistent with the foundational logic of the Constitution in their eyes.

           

Liberals and conservatives are disagreeing with themselves about the role of government, but we should be making the argument to the people about the legitimacy of this government rather than fighting over it and draining ourselves in its internal philosophical, legal, and bureaucratic battles. We are the only ones capable of communicating that while the liberals and conservatives fight over their interpretation of liberal democracy, we can make the argument that the liberal republic is not any democracy in the first place! And the decisions of the unelected court against public opinion have only provided socialists with fuel to make that argument!

           

As socialists, we must ask another question. We must ask: how we can use the crisis to demonstrate to the bulk of workers who are not yet class conscious the inability of the liberal republic to function and live up to its promise to provide general welfare and safeguard political rights? That is what we need to accomplish. We must use the current crisis to more clearly demonstrate the need for the as-yet unradicalized public to recognize that 1) The liberal republic is dead, 2) It was never the means of implementing a democracy we have been told and, 3)We must build a workers republic.

           

What has brought us to the point of widespread public dissatisfaction, and near loss of public faith in the Supreme Court? Media coverage of the Supreme Court has been exhaustive, so let’s simply revisit some of the instances that have eroded public opinion in the Court since the overturning of Roe v. Wade. Leaving the liberal and progressive arguments aside, let’s see what the actions of the Court mean about the institution itself and what it says about the liberal republic more broadly.

           

Overturning Roe v. Wade was inflammatory for many reasons. It undid a long-standing and very popular opinion that covered a set of rights that had no other legal protection (ie, a law or constitutional amendment). In addition to that, it directly named other things such as gay marriage and access to contraceptives as decisions to reconsider. Being that these are also strongly supported rights among the public, having them come under threat set people against the Court further.

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Additionally, the Court has decided to hear several cases that have widespread implications on the executive branch’s regulatory power. Those concerns have been amplified by the conservative tilt on the bench. These include West Virginia v. Environmental Protection Agency (6-3 ruling which ruled that large-scale clean energy transitions fell outside of the regulatory bounds of the EPA and could only be regulated by Congress), Snyder v. United States (not yet heard, pertains to corporations ability to financially reward public officials n exchange for government contracts and favors) (Schwenk 2024) and two other impending cases which impact the Department of Commerce, Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce. These deal with the Supreme Court precedent known as “Chevron deference” where the Court decided in a 1984 case that if there is no law dealing with a specific regulatory issue, that the Court will “defer” to federal regulators considered experts in the field. Those regulators were authorized to regulate according to a “reasonable interpretation of the law” (Kundis Craig 2024).

           

In addition, more attention has swirled around the Court’s ethical standards and measures of accountability. Reporting revealed large scale financial rewards or material compensation going to Supreme Court justices which went unreported. Furthermore, justices were revealed to be weighing in on decisions in which there were clear or apparent conflicts of interest, some making decisions in favor of the donors of various financial and material compensations.

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Reporting by ProPublica revealed extensive unreported gifts going to Samuel Alito and Clarence Thomas. Conservatives called out similar instances of undisclosed “reimbursements” from Justices Stephen Breyer and Ruth Bader Ginsberg (Raymond 2024). The only self-imposed regulations from the Supreme Court made in response to months of public pressure were “neither binding nor enforceable” (Becker 2024).

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Most recently, the Supreme Court decided to hear a case challenging Donald Trump’s removal from the Colorado state ballot. Colorado’s argument was that Trump was in violation of insurrection law and prohibited from office by way of the 14th Amendment. The Court struck this down unanimously. They stated that while the state government was free to bar violators from state and local elections, barring presidential candidates was not within their legal authority.

           

The Biden campaign said they were planning on beating Trump at the ballot box and “didn’t care” about the Colorado ruling. Meanwhile, liberals and progressives argued that the Court had failed to properly interpret the 14th Amendment (Osgood and Stepansky 2024). It remains to be seen if Trump will be convicted for his role in the January 6 protest. Liberals will undoubtedly hope for a conviction to take Trump off the ballot and shy of that, hope they can get out voters in large enough numbers to stave off Trump’s reelection. But with a great majority of the country wanting to see Trump convicted for January 6, whether or not the Court’s decision is constitutionally sound means nothing. The public, especially the majority that does not identify with either party, is highly unfriendly to a second Trump term. So the public sees through the constitutionality and only sees the Court playing into the Democratic and Republican effort to force a Biden-Trump rematch on an unwilling electorate.    Obviously, this has isolated the Court even more and further inflamed the electoral crisis that is likely to emerge in November.

           

The clear tendency toward deregulation, dismantling women’s rights, dismantling corruption law, constantly working to be subject to the least amount of accountability or oversight, and the appearance of not applying the law to Donald Trump has made the Supreme Court hemorrhage public support. Support among Democrats is the lowest of any political group historically, and support among Independents the lowest for that group historically (Jones 2022). Their decision with Trump has compounded that.

           

Criticism of the Court has been deep in the general public, but it is embedded more and more within professional and academic circles as well. We can see many opinion columns and interviews with legal professionals and scholars where the call for Congress to act on important legislative questions is raised. Even some instances where executive action can directly address an issue otherwise being deliberated before the Court. In an opinion piece from William

Becker (2024) implores Congress to allow Biden to add more justices to the Court, to establish rules of ideological balance, to establish enforceable ethics policies, to strengthen the Voting Rights Act, and to codify abortion rights into law for Biden to sign, etc. Regarding the Trump decision, liberals and progressives have criticized it as “dangerous” and a “missed opportunity” to set the message on the country’s “values”. Even the liberal justices had disagreements within the unanimous decision. Justices Sotomayor, Brown Jackson, and Kagan called the opinion “overreaching” saying it threatened the Court’s ability to opine on similar matters and gave too much discretion to Congress (Osgood and Stepansky 2024).

 

From the conservative perspective, the Court has been putting legislative power back in the hands of Congress taking it away from regulatory agencies, and respected the fact that Trump, despite being in many trials at the time of writing, has not yet been convicted of insurrection by anybody. From the liberal perspective, the Court is legislating from the bench and interfering in the election on behalf of Trump, wittingly or otherwise. From the socialist perspective, we have to recognize that the capitalist class only cares that its class interest can be imposed over society. It doesn’t care if that imposition is accomplished democratically or not.

           

Here we can see another instance of how liberals, in times of crisis, turn to the state for a solution. In this instance, the crisis lurks within that very state they hope to solve it, which further compounds the crisis. In one instance, they turn to the Court. In another they turn to the legislature. In another they turn to the ballot. In every instance, it is an appeal to state power.

           

Consequently, we see that the Court’s behavior is a reaction to the fact that Congress has been and remains in gridlock, and executive authority is difficult to use in the existing political climate without some kind of Congressional consensus, which for the reason stated, is rarely achievable.

           

As socialists, we do not see the liberal republic as the protector from whom the great and needed fixes derive. We turn to the masses and organization to resolve crises.

           

How do we approach the cratering public support and increasingly brazen willingness of the Court to become the center of contemporary policy making? We recognize that the political crisis has forced the Court to take up a policy making role and it is doing so explicitly in favor of capitalists.

           

Each decision so far has favored their ability to escape the reach of environmental protections, of corruption law, and allowed conservatives to mount a serious effort at peeling back women’s rights with Joan Biskupic’s (2024) anticipation of a large increase in abortion related cases in the future. According to Gallup, a leaked majority opinion in the Dobbs v. Jackson Women’s Health Organization suggests that the Court will allow Mississippi to ban abortions after 15 weeks, and is also likely to overturn Roe v. Wade.

 

Jones (2022) wrote “Americans oppose overturning Roe by a nearly 2-1 margin”.

           

The Supreme Court represents one of several crises playing out in the liberal republic. From a mechanical perspective, the Court is one of the last ways that policy-making can happen with any level of efficiency. It is, for now, the place where the capitalists can take their political questions and get what will serve as a definite answer. We also have the looming election legitimacy questions this November, the decisions on Trump’s role in January 6, the military recruitment crisis, the repeated use of short-term budget agreements and increase in government shutdowns in the past decade, and more. All of these are working together conspiring against the once-famed stability of the United States government. From the socialist perspective we should understand 

that these crises will build up until the ability of the liberal republic to operate as a state comes into fundamental question.

How can socialists turn to mass organization to address this crisis?

           

We must acknowledge that the liberal republic is on its deathbed. With a severe enough downturn in functionality, a similar January 6-style protest may just have the backing of capitalists seeing that the liberal republic no longer secures its ability to project power across society. It was precisely because at the time the liberal republic was still capable of serving that purpose that many capitalists distanced themselves from Trump and his supporters. Some even joined in calls for his criminal prosecution.

           

Because the liberal republic cannot be saved by socialists from its crises, and we cannot use the liberal republic to accomplish the working class’s political goals anyway, we must turn to the first question of all social movements: building dual power and building the means through which seizure of state power can be accomplished. There are some socialists who confuse seizing state power with being elected into executive positions within the liberal republic. This is mistaken. The seizure of state power is a battle between two parallel institutions in a state of dual power attempting to maneuver into a position where one can overthrow the other.

           

Building dual power today means not only building up the Socialist Party with locals and state branches. It does not only mean extending ourselves into our local activist environments and labor unions. It means building relations with other socialist political parties as well. It means orienting a greater and greater mass of working class parties and non-party organizations into a single forum that pools collective strength and puts the many smaller elements within the socialist and working class movements into a space where they can cooperate instead of compete, where they can build up shared projects into genuine institutions that can impact people’s daily lives, and where they can build networks of dual power that more and more make the argument that an alternative the liberal republic can exist, is being built, and is worth turning toward as an institution that can govern seriously and with regard towards the working class’s demands and priorities.

           

This is not a daydream idea. It is what we must be doing—building cross-party relationships, building relations with non-party organizations, and bringing them all into a forum where they can put their forces into shared projects aimed at building dual power and entering the competition against the liberal republic for the right of the working class to govern itself. In New Hampshire, where I organize with the Socialist Party of Southern New Hampshire, we are working on this, and have been active on the question for nearly two years.

           

The New Hampshire Congress of Workers’ Organizations may be one of the only projects of its kind in this country. It consists of our Party’s local branch as well as those of DSA, Communist Party, a local labor organizing group called Workers’ Democracy, and we have an Unaffiliated Caucus through which comrades who are not in a particular organization can participate. The Workers’ Congress is also set to expand to include a New England sex workers’ advocacy group, Erotic Labor Alliance, and a local radical publishing group. It has been active in the local Palestinian Ceasefire struggle as part of a large coalition of organizers and community members that has been working to pass Ceasefire resolutions at the town and city level. It is collaboratively planning public services such as education and tutoring, legal consulting, and a Rate-Your-Landlord database to help inform tenants during their housing negotiations, all being organised to be free to the public and organized by all the constituents within the New Hampshire Congress of Workers’ Organizations. The Workers Congress has established rules of admission, administrative structure, balance of powers between its leadership and membership, and methods of collecting resources to carry out public services and resources. By starting with small projects and branching out into a wider array of more impactful services, we are actively building the dual power that will put life into the question of seizing state power. But we are only in one state, and the United States government will have to be fought everywhere it holds power. We as yet are not serving anyone and still need to roll out even a first service but we have assembled a large and strong group that has stayed together now for nearly two years and we are close to a model of organizing that can be shared and easily replicated as a national form of organization.

           

None of it was possible with the Socialist Party working alone. We had to learn how to work with all the other parties here. We had to engage non-party groups and earn their trust. We had to persuade them to take up the idea of a Workers’ Congress and dual power. The progress we’ve made represents an incredibly encouraging development of the socialist struggle in this country.

           

As we continue to build and the crisis of American politics continues to deepen, we hope that the New Hampshire Congress of Workers’ Organizations will be the first of similar Workers’ Congresses that represent a national movement towards a workers’ republic.

           

Let the liberals work themselves to sleep on what reforms they hope will undue to rot that has set into the liberal republic. Let us turn to the masses! Let us turn to organization! Let us put our forces together and step in unison towards the truly socialist solution to the crisis—dual power and building the workers’ republic!

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Sources

 

Becker, William S. 2024. Opinion: The Supreme Court is broken—we need Congress to fix it. The Hill March 25, 2024

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Biskupic, Joan. 2024.When the Supreme Court overturned Roe v. Wade, it opened the floodgates for abortion- related lawsuits. CNN March 26, 2024

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Jones, Jeffery M. 2022. Confidence in U.S. Supreme Court Sinks to Historic Low. Gallup Pole.com, June 23, 2022

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Kundis Craig, Robin. 2024. A Supreme Court ruling on fishing for herring could sharply curb federal regulatory power. SFGate March 27, 2024.

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Osgood, Brian and Stepansky, Joseph. 2024. ‘Bad sign’: Legal scholars question US Supreme Court’s Trump primary ruling. Al Jazeera March 5, 2024.

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Raymond, Nate. 2024. US Supreme Court justices, judges face new rules for disclosing free trips. Reuters March 18, 2024

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Schwenk, Katya. 2024. The Supreme Court Is Chipping Away at Anti-Corruption Law Jacobin March 19, 2024.