Has the Trump Supreme Court gone rogue? The evidence mounts. Certainly, its recent judicial blitzkrieg has run roughshod over a century’s worth of settled law.
A woman’s right to get an abortion? Gone (at least as a constitutionally protected civil right). Meanwhile, voting rights are barely hanging on, along with the 1965 Voting Rights Act that gave them life. State legislatures, so the court ruled, may no longer rein in the wanton availability of firearms and so the bloodshed will inevitably follow. Climate catastrophe will only get closer as the Supremes have moved to disarm the Environmental Protection Agency’s efforts to reduce carbon emissions. Religion, excluded from the public arena since the nation’s founding, can now invade the classroom, thanks to the court’s latest pronouncement.
This renegade court is anything but finished doing its mischief. Affirmative actionmay be next on the chopping block. Gerrymandering, long an ignoble tradition in American political life, could become unconstrained if the Supremes decide to exempt such practices from state court judicial review. And who knows what they are likely to rule when every election not won by the Republican Party may be liable to a lawsuit.
Donald Trump’s three appointments to the court — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — cemented in place a rightward shift in its center of gravity that had begun decades earlier. Ever since, in 1986, President Ronald Reagan appointed William Rehnquist, a staunch conservative, as chief justice, the court has only become ever more averse to regulating business, even as it worked to reduce the power of the Federal government.
Don’t forget that it essentially appointed George W. Bush president in 2000 by ruling that Florida couldn’t conduct a recount of the vote, though it seemed likely that Al Gore would prevail and enter the Oval Office. And even after Rehnquist passed away, the court’s 2010 Citizens United decision granted corporations the same free speech rights as people, further eroding democracy by removing limitations on their campaign contributions.
This march to the right was in stark contrast to the earlier deliberations of the court led by Chief Justice Earl Warren. The Warren court was, of course, best known for its landmark 1954 Brown v. Board of Education decision striking down public school segregation. It would also become the judicial centerpiece of a post-World War II liberal order that favored labor unions, civil rights, government oversight of business, and the welfare state.
Historically speaking, however, the Warren Court was the exception, not the one cobbled together by Donald Trump and effectively, if not officially, presided over by Justice Clarence Thomas. The Supremes were born to be bad.
Enshrined in the Constitution
From the beginning, the Supreme Court was conceived as a bulwark against excessive democracy, as indeed was the Constitution itself.
During the years leading up to the 1787 constitutional convention in Philadelphia, the country was in a chronic state of upheaval. Local insurrections against heavy taxation, land and currency speculators, and merchant-bankers had called into question the security and sanctity of private property. Local legislatures proved vulnerable to take-over by the hoi polloi who felt free to cancel debts, print paper money, stop evictions, and oust elites from their accustomed positions of power.
Various impediments to this kind of “mobocracy” were baked into the Constitution, including the electoral college for presidential votes and the indirect election of senators by state legislatures (until the 17th amendment was ratified in 1913). The Supreme Court was just another such obstacle.
Founding Father James Madison typically saw that court as protection against “factious majorities” at the state and local level that might threaten the rights of property-holders. Fearing “passionate majorities,” he went so far as to propose a joint executive-judicial council with veto power over all legislation.
That idea went nowhere. Still, the principle of “judicial review” — the power of the court to have the last say on the constitutionality of legislation — although not made explicit in the Constitution was implicit in the way the founding fathers sought to reign in democratic impulses. French author Alexis de Tocqueville in his nineteenth-century classic, Democracy in America, typically recognized the special status accorded to judicial elites, describing them as America’s “high political class.“
At first, the Supreme Court’s services weren’t needed as a guardian of vested interests and its presence was muted indeed. It met in the basement of the Capitol and, between 1803 and 1857, struck down only two federal statutes. (Compare that to the 22 it struck down between 1992 and 2002 alone.)
The court would, however, establish an enduring reputation for conservatism thanks to its infamous 1857 Dred Scott decision. By a 7-2 majority, the justices declared all Black people — free or enslaved — to be non-citizens. They also ruled that, even if a slave made his or her way to a free state, he or she would remain the property of the slave owner and declared that no territory under U.S. jurisdiction could prohibit slavery.
Dred Scott is generally considered to be the most egregious decision in the court’s 250 year history. That ruling was, however, in keeping with its basic orientation: to side with propertied interests, not the unpropertied; slave-owners, not slaves; and industrialists and financiers rather than with those who worked for and depended on them.
Gatling-Gun Injunctions and Yellow Dog Contracts
After the Civil War, the court became ever more aggressive in defending the interests of the powerful. There was a need for that as, once again, the powerless threatened the status quo.
Reconstruction — the period immediately after the Civil War when the Federal government imposed martial law on the former Confederate states — empowered ex-slaves to militantly exercise their rights to full civil and political equality under the 14th and 15th amendments. Desperate farmers in the Midwest, on the Great Plains, and in the South were then mobilizing to protect themselves from predatory banks, railroads, and commodity speculators. Industrial workers were engaged in pitched battles with their employers, confrontations that elicited widespread sympathy in cities and towns across the country.
“Passionate majorities” needed chastening and the court met the challenge. It launched an era, much like our own, of “judge-made law” that would last from the late 1880s into the 1920s.
Early on, the Supremes declared a civil rights act unconstitutional. Later, in Plessy v. Ferguson, they made segregation constitutionally legitimate via the doctrine of “separate but equal” and so helped restore elite white rule in the South. By ensconcing segregation, they also ended the hopes aroused by the Populist movement for an alliance of black and white rural poor against predatory banks and landlords.
The populist fervor of that era led some state legislatures to adopt laws regulating railroad rates and the fees charged by grain-elevator operators, while challenging corporate monopoly power over the vital necessities of life. Initially, the court tread carefully. Soon enough, however, the justices shed that reticence, using the power of judicial review to wipe such laws off the books. With a distinct touch of irony, they concluded that, in the eyes of the law, corporations were indeed persons and so entitled to the very civil rights guaranteed to ex-slaves by the 14th amendment (“rights” presumably denied them under state regulatory statutes).
Regulating business, the justices suggested, was tantamount to confiscating it. As one railroad lawyer had argued before the court, such regulation was “communism pure and simple.” From that same perspective, the court found a federal law establishing an income tax unconstitutional. (It took the 16th amendment, passed in 1913, to make the income tax national law.)
Industrial capitalism accumulated its wealth by subjecting the lives of millions of workers to abject misery: poverty, overwork, danger, disease, and profound indignity. It would prove a bloody affair, igniting confrontations between workers and their bosses more violent than anywhere else in the western world. As those workers began organizing collectively, their middle-class allies occasionally succeeded in passing relevant laws for minimum wages, outlawing child labor, putting a ceiling on the work hours an employer could enforce, and making the workplace safer or, at least, compensating those injured on the job.
The justices of the Supreme Court, some of whom had once been lawyers for the railroad, iron, and steel industries, knew just what to do in response to such democratic challenges to the prerogatives of capital. While the right to strike might be honored in theory, the court issued injunctions to stop such strikes from happening so often that the era became known (after the early machine gun of that time) for its “gatling-gun injunctions.” That term was used in part as well because such rulings could be enforced by the Army or its state militia equivalents, not to mention the imprisonment and heavy fines often involved. During one such bloody encounter, William Howard Taft, then an Ohio judge, later president, and finally chief justice of the Supreme Court, complained that federal troops had “killed only six of the mob as yet. This is hardly enough to make an impression.”
To rub yet more salt in the wound, such injunctions were often justified under the Sherman Anti-Trust Act of 1890. Originally designed to break up monopolies, it would be used far more frequently to bust strikes (and sympathy boycotts) on the grounds that they were “conspiracies in restraint of trade.” The court repeatedly enjoined “secondary boycotts“; that is, supportive actions by other unions or groups sympathetic to striking workers. It also struck down a Kansas statute that banned “yellow dog contracts” — agreements promising that they would never join a union that many workers were forced to sign on being hired.
Laws that attempted to ameliorate the harshness of working-class life were treated with similar disdain. New York state, for example, passed one banning cigar making in tenement workshops as a danger to workers’ health. The court saw otherwise, treating such tenement dwellers as independent contractors who had freely chosen their way of life.
New York also tried to limit the hours bakers could work to 10 a day and 60 a week. At the time, they were normally compelled to work 75 to 100 hours weekly in ill-ventilated cellars of tenement bakeries where breathing in the flour was a danger to their lungs. The justices begged to differ. In Lochner v. New York — named after the bakery owner who sued the state — they refused to recognize any threat to the well-being of bakers who, in the eyes of the court, had freely contracted to work on those terms. They were after all as free as their employers to strike a bargain or choose not to work.
The freedom of contract was then the reigning judicial orthodoxy, inherited ironically enough from the long struggle against slave labor. Unlike slavery, free labor allegedly enjoyed an equality of standing in any contractual relationship with an employer. Laws or unions which interfered with that “freedom” were rendered nugatory by the Court and it didn’t matter how obvious it was that the imputed equality between owners of capital and the men and women compelled to work for them was illusory.
The only laws of that sort which passed muster were those protecting women and child laborers. The justices considered such workers inferior and dependent, and so, unlike men, unable to freely enter into relations of contractual equality. In the case of women, there was the added danger of jeopardizing their maternal role. Still, consider it an indication of just how reliant businesses had then become on child labor that even a federal law that controlled the ages and hours children could work was, in the end, struck down by the Supreme Court.
The Court v. the People
By the turn of the twentieth century, the outcry against “judge-made law,” the willful manipulation of the Constitution to shore up endangered bastions of wealth and power, had grown ever stronger. Some more recent scholars have found the court’s rulings then not as one sided as its reputation suggests, but contemporaries certainly didn’t share those doubts.
When the Supreme Court overturned an income tax law, a dissenting justice vividly described its decision as a “surrender to the moneyed classes.“
Similarly, in 1905, Supreme Court Justice Oliver Wendell Holmes broke with his colleagues when they ruled in the Lochner case, noting that “the 14th amendment does not enact Mr. Herbert Spencer’s Social Statics.” (Spencer was then the world’s foremost proponent of social darwinism and a staunch defender of free-market economics.) A few years later, future Supreme Court Justice Louis Brandeis cuttingly noted that “to destroy a business is illegal. It not illegal to lower the standard of the working man’s living or to destroy the union which aims to raise or maintain such a standard. A business is property… A man’s standard of living is not property.”
Other voices were also being raised in alarm over the coming of a “judicial oligarchy.” Politicians from former president Theodore Roosevelt to perennial Socialist Party presidential candidate Eugene Debs began denouncing “the rogue court.” When he ran again for president in 1912 as the candidate of the Bull Moose, or Progressive Party, Roosevelt declared that the people are “the ultimate makers of their own Constitution” and swore that Americans would not surrender that prerogative to “any set of men, no matter what their positions or their character.” His rival for the party’s nomination, Wisconsin senator Robert LaFollette, typically offered this observation: “Evidence abounds that… the courts pervert justice almost as often as they administer it.” There existed, he concluded, “one law for the rich and another for the poor.“
Calls for reform back then should sound eerily familiar today. Populist presidential candidate James Weaver urged that Supreme Court justices be elected and lifetime terms abolished. A bill introduced in Congress proposed that a majority of both houses should have the power to recall and remove a judge from office. Another demanded a super-majority of justices — seven out of nine — be required to invalidate a law. Roosevelt argued that there should be popular referenda on the court’s decisions. The Socialist Party demanded that the Supreme Court’s power to review the constitutionality of federal laws be done away with and all judges elected for short terms.
Still, the court prevailed until the Great Depression of the 1930s. President Franklin Roosevelt, however, passed new laws regulating business and finance, as well as a national minimum wage and maximum-work-hours statute, while legalizing the right to join a union. Together with yet another uprising of beleaguered industrial workers in those years, this would shift the balance of power. Even then, the Supreme Court justices at first succeeded in nullifying key pieces of Roosevelt’s economic recovery legislation, while Democrats at the time, (as today), talked about adding new justices to the court.
In the end, however, the national trauma of a capitalism seemingly on the verge of collapse, the weight of changing public opinion, and the aging out of some of the justices ended the dominion of the Lochner court.
“The Race Question”
During the long years of opposition to that court, little of the criticism touched on “the race question.” How to account for that? From the Gilded Age of the late nineteenth century to Roosevelt’s New Deal, Americans were preoccupied with “the labor question” (as it was then called) — that is, how to deal with the great social divide between capital and labor opened up by industrialization.
The silence when it came to the no less striking racial bias of the Supreme Court speaks to a ubiquitous national blindness on matters of racial justice then. Of course, segregation was settled law at the time. In the words of a justice deciding the Plessycase, white supremacy was “in the nature of things.” (Sound familiar?) So, too, the relative weakness of mass movements addressing the racial dilemma during the Lochner court years was striking, making the issue easier to ignore.
The Supreme Court’s original responsibility was, as James Madison once put it, to guard against the “tyranny of the majority.” African-Americans were, of course, a long-tyrannized minority.
However, on that subject the Lochner court went AWOL, even by its own standards. If the “minority” in question happened to be a corporation, it, of course, needed the court’s protection. Not so fortunate were millions of ex-slaves and their descendants.
Eventually, a different Supreme Court, the one overseen by Chief Justice Earl Warren, faced the “race question.” Indeed, it expanded civil rights and civil liberties generally by making racial segregation illegal in public schools, increasing the constitutional rights of defendants, outlawing state-sponsored school prayer, and creating the groundwork to legalize abortion.
Times had changed. Civil rights for African-Americans (about which Roosevelt’s New Deal did little) became an increasing concern during and after World War II. Growing civil rights organizations and a then-powerful labor movement began to press the issue ever harder. By the time the Warren Court made its celebrated 1954 Brown v. Board of Education decision, race had become a “question,” just as the “labor question” had in the New Deal era.
Before then, pressure alone, however muscular, had not produced a shift in the high court’s approach as the Lochner court so amply demonstrated. Segregation had, after all, become entrenched as a way of life endorsed by local white legislatures. Southern commercial interests in particular — plantation owners, textile manufacturers, and raw material producers — depended on it.
Beyond those circles, however, segregation had become increasingly repellent in a culture ever more infused with the multi-ethnic sympathies and cosmopolitanism of the New Deal era. In beginning the dismantlement of legal segregation, the Warren court would not, in fact, threaten the country’s central institutions of power and wealth which, if anything, had by then come to find American-style apartheid inimical to their interests.
Justice is supposed to be nonpolitical, but that has never been the case. What was once termed the “counter-majoritarian” mission of the court — to discipline “passionate majorities” — produced great wrongs in the era of the gatling-gun injunction as had also been true earlier. The Warren court, however, was the exception. It achieved the very opposite results, even as it relied on the same constitutional logic (the civil rights enshrined in the 14th amendment) the Lochner court had in thwarting mass movements for justice and equality.
Today’s Supreme Court is more than Donald Trump’s creation. It’s the result of a long counter-revolution against the political, economic, and cultural reforms of the New Deal, as well as of the labor, civil rights, women’s, and gay liberation movements of the last century.
Sadly, those are the “passionate majorities” the court now seems all too determined to squelch and in that it stands in a long American tradition, though one most of us had forgotten in the Warren years. One thing should be obvious by now: if the country is ever to live up to its democratic and egalitarian promise, the tyranny of the Supreme Court must be ended.
This column is distributed by TomDispatch.