This article is an opinion piece written by a frequent Peace &Fr eedom Party voter. While many of us agree substantially with the content, the abolition of the Supreme Court is not an official position of the PFP, its subcommittees or members.
“The people made the Constitution, and the people can unmake it.” –Cohens v. Virginia, 19 U.S. 264, 389 (1821) (Marshall, C.J.)
“This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember or overthrow it.”
–Abraham Lincoln, First Inaugural Address (1861)
The United States Supreme Court’s approval rating (25%) is now at the lowest level it has been in 50 years.[1] At rallies protesting the Court’s overruling of Roe v. Wade, homemade banners and signs reading “Abolish SCOTUS”, “Abort SCOTUS” or “Burn SCOTUS Down” are now carried openly by regular Americans alongside the old, liberal platitudes: signs containing messages such as “RBG Brought Me Here” (by refusing to resign?), “Defend Roe” (defend it how?) or “Our Bodies, Our Choice”.
The three justices appointed by Trump – Neil Gorsuch, Brett Kavanaugh and Amy Comey Barrett – have caused the Supreme Court’s politics to veer sharply to the right. But the crisis in American life now reaches so deeply and pervasively that the notion which held sway for decades in the United States, that the Court’s (neo)liberal justices can bring things back to how they were on multiple fronts ranging from abortion, voting rights, money in elections and climate change to labor rights and the rights of criminal defendants and prisoners has become untenable.
I do not mean that it is untenable from the perspective of public policy: Turning back policy has been a dead letter ever since at least the Reagan/Thatcher neoliberal turn in the 1980s, and there is no going back. The collapse of liberalism as a political project is, perhaps for the first time, a demonstrated and immediate reality that is now experienced and felt by millions of workers in this country. The collapse of Roe v Wade brings home the complete bankruptcy of capitalist neoliberalism, along with its banner-bearers in the Democratic Party, as a force capable of defending even basic supposedly long “guaranteed” reproductive rights for pregnant people, and by extension all working Americans. It confirms, through actual lived experience, Lenin’s description of so-called “rights” under capitalism from Marxism and Reformism (1913):
“Unlike the anarchists, the Marxists recognize struggle for reforms, i.e., for measures that improve the conditions of the working people without destroying the power of the ruling class. At the same time, however, the Marxists wage a most resolute struggle against the reformists, who, directly or indirectly, restrict the aims and activities of the working class to the winning of reforms. Reformism is bourgeois deception of the workers, who, despite individual improvements, will always remain wage-slaves, as long as there is the domination of capital.
“The liberal bourgeoisie grant reforms with one hand and with the other always take them back, reducing such reforms to nought, use them to enslave the workers, divide them into separate groups and perpetuate wage-slavery. For that reason, reformism, even when quite sincere, in practice becomes a weapon by means of which the bourgeoisie corrupt and weaken the workers. The experience of all countries shows that the workers who put their trust in the reformists are always fooled.”
Obviously, American workers did not all suddenly discover that they were really Leninists last Friday. But the crisis, and the failure of the existing political order to solve it, is now a felt reality manifesting in all of our lives in many different arenas: the housing crisis and ballooning homelessness; the continuing privatization of public assets; the erosion of healthcare and the social safety net; the lack of meaningful change in police repression and the mass incarceration system; the Biden Administration’s inaction on climate change, even before West Virginia v. EPA was decided by the Supreme Court; ballooning corporate profits due to stock buybacks which have now gone on for more than a decade; the complete failure of the Biden Administration to address months of inflation, followed by a drastic shift to recessionary policies by the Federal Reserve destined to pauperize and throw out of work millions of Americans, to say nothing of the sovereign debt defaults which higher interest rates will cause in the neo-colonies. All of this is taking place now, in the midst of an imperialist war, and it affects us all, if in varying degrees and in dramatically diverse ways.
And over all these disasters looms COVID-19, a catastrophe which is killing thousands of people every day, deaths rendered invisible by the mainstream media. Most of these people never had to die. The Biden Administration chooses to accept these deaths, which disproportionately fall upon communities of color and the poor, in the name of forcing people to go back to work.[2][3]
The crisis, therefore, is (and indeed always has been) well advanced. What is lagging, but beginning to develop in reaction to the scale and rapid development of the internal crisis, is class consciousness. On this subject, Rosa Luxemberg wrote in “Reform or Revolution” (1900):
It is not true that socialism will arise automatically from the daily struggle of the working class. Socialism will be the consequence of:
(1) the growing contradictions of capitalist economy, and
(2) of the comprehension by the working class of the unavoidability of the suppression of these contradictions through a social transformation.
In other words, socialism arises when the working class realizes, as practical reality and not as theory, that the contradictions of capitalism cannot be resolved except “through a social transformation,” i.e. through the revolutionary overturning of existing relations of production. Such overturning, of necessity, must abolish the institutions which defend those relations, including the Supreme Court, the judicial system and the institution of law itself. The remainder of this brief essay sketches out why the abolition of the Supreme Court, and indeed the legal profession itself, is urgently needed.
The Supreme Court which today reverses Roe also handed down Citizens United v. FEC twelve years ago. Ten years before that it gave us Bush v. Gore. These decisions were handed down with a different composition of the Court, and it could be said (and is said, by the “left” of the legal profession) that, because these were all contested decisions in which the Democrat and Republican justices divided, having more of “our” justices would prevent such decisions.
Such thinking ignores the fact that there are many issues on which the Court has a basically unified position, and which no amount of justice-picking will change. These are major doctrines of so-called constitutional law which enjoy bipartisan support on the Court and would be defended by both liberal and conservative justices alike under stare decisis, the doctrine that settled precedent should not be disturbed. Such doctrines include:
1) The unreviewable authority of the Executive Branch to declare and wage war, in spite of the plain text of Article I, ection 8 of the Constitution, which expressly states that only Congress has this power;
2) The unreviewable, secret authority of the Foreign Intelligence Surveillance Court (FISC) to issue FISA warrants, under which, as Edward Snowden revealed in 2013, the NSA used to obtain authority to create real-time searchable databases of Americans’ private correspondence. The FISC has, over its 33-year history, granted 33,942 warrants and rejected 12 – a rejection rate of 0.03% of the total number of requests;
3) The so-called “political question doctrine”, under which courts will refuse to adjudicate questions which present “an unusual need for unquestioning adherence to a political decision already made” by the President or Congress (Baker v. Carr, 369 U.S. 186, 217 [1962]) questions such as whether Henry Kissinger and the CIA assassinated a Chilean general to prevent Salvador Allende from taking office (Schneider v. Kissinger, 310 F.Supp.2d 251 [D.C. Cir. 2004]); whether the Governor of Ohio caused the Kent State Massacre (Gilligan v. Morgan, 413 U.S. 1 [1973]); or whether the State of Israel ought to be criticized by an American court because the IDF ran over and murdered Rachel Corrie with a Caterpillar bulldozer (Corrie v. Caterpillar, 503 F.3d 974 [9th Cir. 2007]);
4) The widespread use of injunctions to prevent workers from engaging in strikes and picketing, even though the Norris-LaGuardia Act explicitly bars federal courts from issuing injunctions in a labor dispute (Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235 [1970]);
5) The longstanding consensus that prisoners have no rights which prison administrators are bound to respect, as illustrated by such decisions as
- Overton v. Bazzetta, 539 U.S. 126 (2003) with Stevens, Breyer, Ginsburg, Souter in the majority);
- Ross v. Blake, 578 U.S. 632 (2016), opinion by Kagan; Beard v. Banks, 548 U.S. 521 (2006), opinion by Breyer;
- Porter v. Nussle, 534 U.S. 516 (2002), opinion by Ginsburg; and
- Thornburgh v. Abbott, 490 U.S. 401 (1989), opinion by Blackmun.
But the analysis should not end with court opinions. As Karl Marx realized when he was a law student more than 150 years ago, legal doctrines alone do not define the function which courts and the legal profession play in our political economy.[4] Rather, the institution of law exists in relation to other institutions in society. Its function can only be understood together with these other institutions, and ultimately as an expression of the material bases of society.
Beyond legal doctrines lie fundamental and largely unchallenged assumptions regarding the “rule of law” and the role lawyers play in society. These are often ideological assumptions, but they do not function as abstract ideologies: Rather, these belief systems or assumptions support concrete repressive functions in society, which in turn defend particular societal relations. The legal system performs this function in conjunction with, and as a part of a network of, other repressive societal institutions.
For example, take the notion that courts are impartial arbiters of purely legal issues presented through “cases”. In reality, as everybody realizes, justice in this society accrues to he who has the money to pay the better lawyers. The Supreme Court Bar is, in the first instance, a corporate bar, and the Supreme Court has and always will be a corporate court, as Ruth Bader Ginsburg and other justices freely admit. [5] This elitism at the Supreme Court is a distillation of a basic elitism baked into the legal profession and law school education, an elitism which worsens with every passing year.
Law underrepresents the interests of working and poor people. No meaningful decision strengthening the right of a criminal defendant to counsel (the real right as determined through real results, instead of an abstract right) has come down since Gideon v. Wainwright in 1963, even though, in some counties, public defenders are so overworked that they can barely spend five minutes on each client – if the client’s lucky.[6]
Furthermore, even in exceptional situations when, after great and often unsuccessful struggles, the legal system actually vindicates the interests of oppressed people, the political system will nevertheless override these legal decisions and render them a dead letter. Take, for example, the Vietnam War. In 1973, the Supreme Court for a single day declared a halt to the secret bombing of Cambodia by the Nixon Administration in an order by Justice William O. Douglas.[7]
Although Douglas unquestionably had the authority to issue this order, the Supreme Court, in violation of its own procedures, held a telephonic meeting and reversed Douglas. A quorum did not exist, because by Congressional statute, six justices were required for a quorum, and the Court was out of session. But this did not matter one iota: Douglas’ order was nevertheless reversed. The military, of course, paid no attention to any of this silliness and the carpet-bombing of Cambodia never stopped.[8]
Or consider the fate of the Cherokee Nation. During the expropriation of sovereign Cherokee land by the state of Georgia which eventually led to the forced relocation of 60,000 Native Americans during the “Trail of Tears”, the Supreme Court reached a decision holding that Georgia criminal law had no force inside Cherokee land, because the Cherokees were a sovereign nation.[9] The decision came after several rounds of unsuccessful litigation. After the decision was rendered, Justice Joseph Story wrote to his wife: “Thanks be to God, the Court can wash their hands clean of the iniquity of oppressing the Indians and disregarding their rights.”
In response to the Court reaching the correct decision, President Andrew Jackson refused to enforce the Supreme Court’s order, saying famously (and probably apocryphally) “Well, John Marshall has made his decision, now let him enforce it.” Nothing was done for the Cherokee. [10] Their forced relocation began six years later. Sixteen thousand Cherokee, with 1,000 to 2,000 of their slaves, marched 1,000 miles in the dead of winter, with barely any clothing. Many had no shoes. Four thousand – almost a quarter of them - died during the march. A Georgian soldier who observed the Trail of Tears wrote, “I fought through the civil war and have seen men shot to pieces and slaughtered by thousands, but the Cherokee removal was the cruelest work I ever knew.”[11]
The phenomenon called “criminalization” describes another area in which the material reality of the legal system affects working people. I understand criminalization to describe a set of institutions, not directly part of the criminal justice system as such, in which working people can be deprived of rights to an extent comparable to those experienced by a criminal defendant. Examples include the child welfare system, the welfare system itself, supervised or low-income housing (which is frequently intensely surveilled), the mental health system and the conservatorship system. Individuals in these institutions can suffer grievous deprivations of their well-being without any of the protections typically afforded to a criminal defendant charged with a crime. As Anatole France once put it, “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”
The far-reaching and longstanding problems described in this piece cannot be resolved through legislation, nor through the election of individual legislators, District Attorneys, sheriffs or judges, no matter how radical their speeches may be. It cannot be resolved through the piecemeal resolution of individual cases. Nor can it be addressed through a “movement”. A so-called “movement” implies some vague level of political consciousness without answering the essential question, which is what the “movement” intends to do, what tactics it adopts, and what it says that the workers should do.
The institution of law does not belong to the workers of this country, and in no period of American history has it been otherwise. As Karl Marx realized when analyzing the destruction of the Paris Commune, “the working class cannot simply lay hold of the ready-made state machinery and wield it for its own purposes.”[12]
In order for the material benefits we struggle for to be achieved – both for the workers in this country and the billions of people now living in the neo-colonies – the workers must take control of the institutions of society and administer them in their own interests. But if the workers begin to act in their own interests, reaction develops at the same time. The existing institutions of society favor the side of reaction. Thus, as class consciousness develops, the workers, in order to survive as an independent political force, must smash those institutions, or be destroyed themselves.[13] And in the process of smashing those institutions which make up the capitalist state, they must also smash the institution of law itself.
The contradictions of capitalism are worsening. The overruling of Roe is just the beginning. The Court has already stated they intend to torpedo Miranda next.[14] As the situation deteriorates, the workers of this country must decide to “suppress the contradictions [of capitalism] through a social transformation”. Whether they smash the Supreme Court in time – or not – will determine whether we all wind up with fascism, or perhaps something better.
–written by Richard Tan
Richard Tan is a criminal defense and civil rights attorney practicing in Oakland.
End notes
[1] Jeffrey M. Jones, “Confidence in U.S. Supreme Court Sinks to Historic Low.” Gallup News, June 23, 2022. [Link]
[2] “The Great Barrington Declaration.” October 4, 2020. [Link]
[3] Walker Bragman and Alex Kotch, "How The Koch Network Hijacked The War On COVID." Lever News, Dec. 22, 2021. [Link]
[4] Karl Marx, “A Contribution to the Critique of Political Economy”, 1859.
[5] Joan Biskupic, Janet Roberts and John Shiffman, “The Echo Chamber: At America’s Court of Last Resort, a Handful of Lawyers Now Dominates the Docket.” Reuters, Dec. 8, 2014. [Link]
[6] Richard A. Oppel, Jr. and Jugal K. Patel. “One Lawyer, 194 Felony Cases, and No Time”. New York Times, Jan. 31, 2019. [Link]
[7] Holtzman v. Schlesinger, 414 U.S. 1304 (Aug. 1, 1973) (Thurgood Marshall, doing nothing); Holtzman v. Schlesinger, 414 U.S. 1316 (Aug. 4, 1973, filed Aug. 3, 1973) (Douglas); Schlesinger v. Holtzman, 414 U.S. 1321 (Aug. 4, 1973) (Thurgood Marshall, overruling Douglas).
[8] Fidell, Eugene R. “Why Did the Cambodia Bombing Continue?” Green Bag 2D 321 (2010). [Link]
[9] Worcester v. Georgia, 31 U.S. 515, 559-560 (1832) (John Marshall).
[10] For more detail on the Cherokee cases, see Stephen Breyer, “The Cherokee Indians and the Supreme Court”, The Georgia Historical Quarterly, v. 87 No.3/4, pp. 408-426 (2003). [Link]
[11] Mooney, James. “Historical Sketch of the Cherokee”, p. 124. Routledge, 2005.
[12] Karl Marx, “The Civil War in France”, 1871.
[13] “Smash” is Marx’s term (German zerbrechen). Karl Marx to Dr. Ludwig Kugelmann, “Concerning the Paris Commune”, April 12, 1871, quoted in Lenin, “State and Revolution”, 1917. [Link]
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