[A History of the Tyranny of the Supremes]
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THE TRUMP SUPREME COURT IS NOTHING NEW  
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Steve Fraser
September 6, 2022
Tom Dispatch
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_ A History of the Tyranny of the Supremes _

Radcliffe, Dr. Wallace; Holmes, Oliver Wendell; Hughes, Charles Evans
Harlan, John Marshall, Associate Justice, U.s. Supreme Court,
1877-1910. Funeral at New York Avenue Presbyterian Church , Harris &
Ewing

 

Has the Trump Supreme Court gone rogue? The evidence
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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
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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
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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
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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
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thanks to the court’s latest pronouncement.

This renegade court is anything but finished doing its
mischief. Affirmative action
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be next on the chopping block. Gerrymandering
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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
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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 xxxxxx
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
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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.

Buy the Book
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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 majoritie
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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
rein 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.
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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
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1992 and 2002 alone
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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
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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
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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
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indeed persons [[link removed]] 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.
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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
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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.
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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
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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
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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
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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
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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
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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
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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.
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Similarly, in 1905, Supreme Court Justice Oliver Wendell Holmes broke
with his colleagues when they ruled in the _Lochner_ case, noting
that
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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
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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.
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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
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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
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(as today
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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 _Plessy_ case, white
supremacy
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“in the nature of things.” (Sound familiar
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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.

_Copyright 2022 Steve Fraser_

_STEVE FRASER, a TomDispatch regular
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is the author of Mongrel Firebugs and Men of Property: Capitalism and
Class Conflict in American History
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His previous books include Class Matters, The Age of Acquiescence,
and The Limousine Liberal. He is a co-founder and co-editor of
the American Empire Project [[link removed]]._

_Follow TOMDISPATCH on Twitter
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