It wasn’t. Warren’s politics were class peace and reform. He treated Communists as class agitators, but he also ruled consistently to “soften” the excesses of capital.

The Warren court went on to decide some of the most important cases in modern Statesian jurisprudence. Brown v. Board of Education, ending legal segregation, Loving v. Virginia, outlawing antimiscegenation laws, Griswold v. Connecticut, establishing the right to birth control, and four major criminal cases that established the rights we think of as fundamental to the criminal process: Gideon v. Wainwright, the right to a court-appointed attorney, Brady v. Maryland, the right to be given exculpatory evidence held by the state, Wong Sun v. United States, granting the right to suppress evidence that was obtained by the police illegally, and Miranda v. Arizona, the right to be informed of your rights when you’re arrested, the famous Miranda warning.

Among these progressive expansions of individual rights was Robinson v. California, the case that the current Supreme Court has just limited to its facts and robbed of any precedent-establishing power. What did the Warren court hold in Robinson? That it was cruel and unusual punishment in violation of the 8th amendment of the federal constitution to criminalize a “status” over which a person has no control. In that case, the court struck down a California law making it a crime to be addicted to drugs. The fascist court of John G. Roberts, Jr., has just held, in the newly issued City of Grants Pass v. Johnson, that the Robinson ruling doesn’t apply to the homeless. This is just the latest in the Roberts court’s piecemeal march against established Warren precedents, and represents nothing less than the sharp contraction of the U.S. empire.

Warren and the Apogee of Empire

By 1953, the war had been over for eight years. Europe lay devastated. In 1948, Truman enacted the Marshall Plan, pumping U.S. capital into areas Washington’s elite thought might be vulnerable to Communism. It was a kind of economic GLADIO, a stay-behind program (and if you don’t recognize GLADIO, that’s worth reading up on). The world war hadn’t ended before the Cold War began, and the U.S., its domestic production untouched by the conflict, stepped out of Great Britain’s shadow to claim hegemony over the West and proclaim itself the sword and shield of the Euro-American capitalist class.

Eisenhower was the first truly post-war president to preside over this new American empire. In a sense Warren and his court, which lasted until 1969, was an extension of the ruling class politics of the age. What was this policy? The expansion of New Deal-type programs — which Warren had attacked before taking the bench — and the creation of a new Pax Americana. Under Eisenhower, post-war imperial wealth flowed from all corners of the globe and it was used to establish social security, the interstate highway system, and NASA. Instead of the growth of social democracy and the welfare state, as seen in Europe, class struggle was suppressed in the U.S. through the expansion of public infrastructure and the goodwill (read: self-preservation) of the capitalist class, which gave out robust pensions, employer-provided health insurance, etc. These benefits fell primarily to the “white” workers, which by now included formerly “non-white” ethnicities from Europe such as the Irish and Italians. The class struggle was thus forced underground during this period, and it manifested explosively in the struggles for national liberation that shook the country from the mid-50s until the end of the 1970s.

We needn’t prove Warren’s personal motivations as Chief Justice to make our case. In fact, from all outside appearances, he genuinely believed in the principles he espoused through his decisions. But such is the case with many bourgeois politicians. They earnestly believe their class ideology. The fact that it serves a class purpose operates on a level below their conscious understanding. It is typical for members of the ruling class to be thoroughly seduced by the self-justifications and illusions that make up their class morality.

Above all, it is this legacy of bourgeois morality that the ultra-fascist majority on the Roberts court have set as their target. As arch-reactionaries, they are working to roll back the clock and restore the early 20th century pre-Warren legal landscape. They are ushering in an era of naked class domination, stripped of the comfortable fat provided by the loot of empire.

Grants Pass is a Return of Labor Discipline

To understand Grants Pass we have to look at the direct precedent that the Roberts court has overturned. The case in question is Martin v. Boise, a 2019 decision concerning unhoused people that was issued by the Ninth Circuit federal Court of Appeals. The Ninth Circuit covers the geographical area of Washington state, Oregon, Idaho, Montana, Nevada, California, and Arizona. According to the 2022 Annual Homelessness Assessment Report released by the federal Department of Housing and Urban Development, 40% of the country’s entire unhoused population lives within the Ninth Circuit’s jurisdiction. As the fascist justice Gorsuch, author of the majority opinion in Grants Pass, noted, “homelessness in this country has reached its highest levels since the government began reporting data on the subject.”

The Martin ruling made it unconstitutional (within the Ninth Circuit) for a state to enforce criminal penalties on public camping if the city in question lacked sufficient shelter beds to house its unhoused population. The legal rationale is dull, but in essence the court held that it was a violation of the 8th amendment’s prohibition against cruel and unusual punishment to jail houseless people simply because they had nowhere to stay, especially if the city lacked sufficient public relief. The Martin decision was predicated on the Warren court’s Robinson ruling, where the court held it to be a violation of the 8th amendment’s cruel and unusual punishment clause to criminalize addiction.

City of Grants Pass arises from a Martin injunction brought by Gloria Johnson and John Logan, who challenged the city’s public-camping laws. They brought a suit as a federal class action, representing “all involuntarily homeless people living in Grants Pass.” A panel of the Ninth Circuit found that Johnson and Logan faced a credible threat of punitive action from Grants Pass and that all unsheltered people in the city were “involuntarily homeless” because the city’s unhoused population exceeds available shelter beds. The city, desperate to retain its punishment power and other tools of state repression, sought a rehearing en banc by the entire court; it was denied. 

Grants Pass filed a petition to the Supreme Court for certiorari (certification that the issue be heard by the Supreme Court of the United States). The cities of Albuquerque, Anchorage, Chico, Chino, Colorado Springs, Fillmore, Garden Grove, Glendora, Henderson, Honolulu, Huntington Beach, Las Vegas, Los Angeles, Milwaukee, Murrieta, Newport Beach, Roseville, Saint Paul, San Clemente, San Diego, San Francisco, San Juan Capistrano, Seattle, Spokane, Tacoma, and Westminster, the National League of Cities (representing over 19,000 other American cities and towns), the League of California Cities (representing California’s 477 cities), the League of Oregon Cities (representing Oregon’s 241 cities), the Association of Idaho Cities (representing Idaho’s 199 cities), the League of Arizona Cities and Towns (representing all 91 municipalities in Arizona), the North Dakota League of Cities (representing 355 cities), the Counties of Honolulu, San Bernardino, San Francisco, and Orange, the National Association of Counties (representing all 3,069 counties of the U.S. empire), the California State Association of Counties, the Special Districts Association of Oregon, the Washington State Association of Municipal Attorneys, the International Municipal Lawyers Association, the District Attorneys of Sacramento and San Diego Counties, the California State Sheriffs’ Association, the California Police Chiefs Association, the Washington State Association of Sheriffs and Police Chiefs, California Governor Gavin Newsom, San Francisco Mayor London Breed, and 20 other states (Alabama, Alaska, Arkansas, Florida, Idaho, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, and West Virginia) all joined the city to support the petition for certiorari.

All the lackeys of law and order, all the petty bourgeois strivers and graspers, all the pigs and their captains, all the fascist forces of the Western United States, put their names on the petition and many of these wrote briefs in support of Grants Pass, begging for Martin to be overturned. The Roberts court was only too happy to oblige.

The Unhoused: Proletarians and the Reserve Army of Labor

The unhoused generally fall into one of two categories when it comes to class. Either they are themselves working class proletarians, who work by wage labor, or they are sub-proletarians, thrown out of the labor force entirely and denied any means of support. These are people who would otherwise live by wage labor, who have no substantial property or investment in the machinery, land, or other tools by which society produces the commodities that are its lifeblood. Many unhoused people were sheltered proletarians or even petit-bourgeoisie only a short time before they became unhoused. With the dismantling of the feeble safety nets erected during the imperial apogee by the “liberal” crowd of Clintonites in the 90s, it has become easier than ever to fall out of the sheltered working classes and enter the ranks of the sub-proletariat, the great unhoused.

The unhoused already suffer a number of critical disabilities inflicted on them by “civil society” before we reach the question of criminalization. Lacking a permanent address and in many times deprived of a stable telephone number, the unhoused are generally prevented from voting by registration requirements. This means the lofty list of cities, towns, counties, etc., that filed to support the City of Grants Pass in its bid to criminalize homelessness were elected without input from the very population they want to police. This is what we mean by class domination. (In the case of the rest of the working proletariat, this relationship is slightly more disguised; because we can technically cast a ballot, and we are often duped into thinking the ballot matters.)

Marx calls those who are kept out of work the relative surplus population (meaning, those people who are, relative to the active work available, kept as extra or surplus without employment) or the industrial reserve army. By limiting the number of jobs available and ensuring that every proletarian and sub-proletarian who isn’t working lives in squalor and near-death, the capitalist class “forms a disposal industrial reserve army, that belongs to capital quite as absolutely as if the latter had bred it at its own cost…. [I]t creates, for the changing needs of the self-expansion of capital, a mass of human material always ready for exploitation.” Capital, Volume 1, Chapter 25, Section 3. At the same time, this industrial reserve army creates a source of extra labor with which to break strikes and serves as a club to discipline the labor force. 

Imagine, for instance, that you work in a McDonalds or an Amazon warehouse. The conditions are atrocious in this particular location. Wages are being docked or withheld illegally, people are being disciplined for nothing, and you aren’t being allowed to take your breaks. You decide to unionize to force the owners to the table; after all, if everyone threatens to walk off the job, they’ll have to make concessions. If you’re in a city where there is a very large unemployed or under-employed population, the owners might simply say “Fine,” discharge you and all your fellow would-be unionizers, and hire replacements from that unemployed labor force — that industrial reserve army.

This helps keep down wages even before we begin to account for the widespread U.S. practice of utilizing basically free prison labor. Criminalization gives capitalists the chance to make use of that free labor because the habitually unhoused will be arrested again and again, and eventually be given sentences of imprisonment that turn them into a state workforce. This is state-labor-for-hire without compensation, all perfectly legal under the 13th amendment to the constitution, which outlaws slavery except as punishment for a crime. After all, about one-third of all California’s firefighters are judicial slaves.

The effect of this ruling on wages and benefits occurs purely by operation of the underlying political economy that will result. It doesn’t require an active conspiracy on the part of the court, the cities, the sheriffs and police, or anyone in the entire chain of command that will ultimately enforce the punitive bans that wind up criminalizing homelessness. Even if, at each step in this process, the agent of the state is merely expressing an honestly-held dislike of “public vagrancy” (and the Gorsuch opinion is brimming with classist descriptions of public defecation and children wading through used needles), it will have the same ultimate effect. More enforceable criminal penalties means more prisoners; it means more court fees; it means, therefore, in states where inmates are forced into slavery, a larger free laboring population. This means the cost of labor will fall relative to its value as more laborers enter the market. Businesses will have the choice between hiring free workers, who might be disobedient, agitate for a rise in wages, etc., or paying the state money to make use of a captive work force. The market price of labor will therefore fall. This, while we are experiencing the sharpest rise in cost of living since the inflation crises at the close of the 1970s, ensures that more workers will be made unhoused as their wages fall, and a downward pressure will continue to be exerted on wages.

The more precarious a workforce is, the more subject to random arrest and search or other punitive measures, the less likely it is to seek redress through unionization and organization. That lesson was demonstrated by the poultry industry when they simply had their unionizing workers deported en masse.

Marching Counter Clockwise

This decision is part of the court’s broad assault on the Warren-based state, the administrative state (that is, the delegation of rulemaking authority from Congress to the administrative agencies), and, critically, the legal regime of unionization. The ultra-fascist justices have rejected a century of precedent and appear intent on ushering in an era of labor-discipline that resembles the U.S. of 1900, before the labor struggles that established the legal right to unionization and prior to the creation of the National Labor Relations Board. The Grants Pass decision fits neatly into this plan to march backwards, into a pre millenarian century.

The door now stands open for the re-establishment of the debtor’s prison in name as well as form. Although the judicial system has long practiced a kind of debt imprisonment in actuality, in form the debtor’s prison is often seen as a quaint Victorian curiosity. There is much less need for covert imprisonment-for-debt now that the highest court in the country has ruled that it is permissible to make homelessness illegal. Yes, certainly, there is an act that these laws proscribe (sleeping in public), but the act is inextricably tied to the status that Gorsuch claims they aren’t criminalizing. The Supreme Court has legalized the debtor’s prison, has given its blessing to the mass incarceration of the unhoused, and has created the conditions for a massive reactionary backlash.

We can see it in the language the majority uses, through Gorsuch. He disdainfully complains that a Chico, California homeless shelter wasn’t sufficient under Martin, even though it “included protective fencing, large water totes, handwashing stations, portable toilets and a large canopy for shade…. Why? Because, in that court’s view, appropriate shelter requires indoor, not outdoor spaces.” Gorsuch has described a concentration camp for the unhoused and mocked a court for holding it insufficient.

This is the future imagined by the Roberts court. Of course Gorsuch defends the concentration camp. When the Supreme Court issues a decision, it isn’t merely making a legal ruling, it is communicating with the parties and potential future parties. The parties to this case weren’t merely the City of Grants Pass, Gloria Johnson, and John Logan, but also every one of the thousands of cities and counties, sheriff’s associations, police groups, district attorneys, state’s attorneys, and other agents of the bourgeois state apparatus. The lurid language that Gorsuch uses is a signal. Justices choose their words carefully. We must be prepared. The state is. They are preparing labor camps for the houseless, “shelters” with protective fencing and a canopy for shade. Taken in the light of the other rulings the Supreme Court recently decided, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, which we discussed when the year began, the intention of the court is clear. They aim to strip administrative agencies of their power, destroy the NLRB, and subject working people throughout the country to a regime of labor discipline by police control.

Last year, the Supreme Court of the United States decided Counterman v. Colorado, 600 U.S. (2023), which held that negligence could never be the standard for First Amendment cases. Essentially, SCOTUS said that, in order to hold someone accountable for their speech, malicious intent must be proved. Under Anglo-American law, there is a differentiation between general intent (intent to do an action) and specific intent (intent to bring about a result). Under the standard decided in Counterman, speech-related acts must have the specific intent of bringing about the complained-of result.

What does that mean in the case of DeRay Mckesson? If the fascist Court of Appeals of the Fifth Circuit had followed this decision, it would have meant that Mckesson could not be found liable to Officer Braindamage unless the officer could prove that Mckesson had organized the protest specifically with the intent of hurting him, or had otherwise directly urged the protestor who threw the concrete to do so. In fact, the District Court did hold that, and dismissed the suit, but Officer Shatterface appealed to the Fifth Circuit Court of Appeals, which issued a ruinous decision. The Fifth Circuit covers the states of Texas, Louisiana, and Mississippi, and in their 2022 decision they held that protest organizers owe a duty not to “negligently cause a third party to commit a crime that is a foreseeable consequence of negligence.” This means, as far as federal law is concerned in those three states, protest organizers are civilly liable for any damage caused by a protest.

Furthermore, it is possible that this will establish the basis for criminal liability. It is an echo of the RICO prosecutions in Georgia. It is not impossible that prosecutors’ offices throughout the South now possess the weapons to indict and charge any participant in a protest as part of a domestic terror plot.

This Monday, the nine robed fascists on the SCOTUS declined to review Mckesson’s case, denying certiorari, and permitting this Fifth Circuit decision to stand. The entire swathe of the U.S. South, the stronghold of the most powerful elements of right-fascistic reaction, will now treat all of its citizens the way it has long treated its Black and Indigenous citizens. The age of the settler-compromise is coming to an end, and the age of open warfare between the proletarian class and the state has returned.

Solidarity to all in the fortresses of fascism — we urge all aid in this hour of war to be sent to them. We will defy the tools of the enemy state, spit in the face of its bourgeois masters, and the masses will have no choice but look into the eye of their propertied enemy, and decide: Whose side are you on?

The liberal process-worshippers immediately deployed their spin doctors to explain why their so-called liberal justices on the court, including Ketanji Brown Jackson, whom this paper has already explained was appointed as a sop from Biden to the left wing of his party, also voted to keep Trump on the ballot. Despite the fact that the pro-Biden chorus has consistently made the claim that Trump and his ilk are a “threat to democracy” (they mean bourgeois democracy!) their appointed justices closed their eyes, held their noses, and voted to leave this “threat to (bourgeois!) democracy” on the ballot in Colorado.

Factions at Play

The ruling class is divided into groups, factions, and cliques. It has never been homogeneous, and the geographical layout of the U.S. Empire has played into the division of interests. As crises grow more acute and the contradictions sharpen — that is, as the divisions become more and more pronounced and the system of U.S. imperial capitalism decays — the ruling, capitalist class will be riven apart by its own internal contradictions and then, as the threat of losing power becomes real, will suddenly be welded together again into a single fighting force.

What are the factions currently on the stage? Obviously, we have the Democratic Party and the Republican Party, which at one time represented functionally different interests and ideologies within the ruling class. However, as we have seen, these names — Democrat, Republican — no longer correspond in any meaningful way to policy positions by the ruling elite. They are, more and more, losing their attachment to the real world.

So, then, we have 1) the Democratic-centrist faction, embodied in President Biden and the DNC and 2) the Republican Old Guard centrist faction. Biden is the president of compromise between these two groups. Each party then has its flanks — on the left, weakening and atrophying within the Democratic Party, are the so-called “progressives” and on the right of the GOP are the growing and strengthening MAGAcrats. The Democratic-centrist faction dominates the Democratic Party, while the MAGAcratic faction dominates the GOP.

Colorado Takes Action

Last September in the lead-up to the Colorado primary election, Republican voters in Colorado filed a petition against Trump to the effect that the 2021 January 6 putsch made him constitutionally ineligible to serve as the president of the U.S. Empire for another term. The legal theory, which is less important than the fact that the Colorado Supreme Court agreed with them, relies on Section 3 of one of the Reconstruction amendments to the U.S. imperial constitution. Section 3 of the Fourteenth Amendment, passed in the wake of the U.S. Civil War and designed to prevent treasonous Confederates from holding office, states that “No person shall… hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States… to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.”

The Colorado Supreme Court agreed by a 4 to 3 vote. All seven of those justices were appointed by Democratic governors of the state, and only two are registered Republicans. However, the Colorado Supreme Court is, by and large, a club of former Assistant Attorneys General and District Attorneys. The four judges that voted to strike Trump from the ballot were Richard Gabriel, Melissa Hart, Monica Marquez, and William Hood. The three who disagreed were chief justice Brian Boatright, Maria Berkenkotter, and Carlos Samour.

Richard Gabriel was a private business lawyer in Colorado; his wife is a Federal public defender in Denver, Colorado.

Melissa Hart is a Harvard law graduate, a former U.S. Department of Justice attorney, and Associate Professor Law at University of Colorado Law School.

Monica Marquez is a Yale graduate who clerked for federal judges and then worked as an attorney in Colorado’s Attorney General’s office for eight years. She was president of the Colorado LGBT Bar Association and board member of the Colorado Hispanic Bar Association before she was elevated to judgehood in 2010.

William Hood is a former prosecutor who worked for the D.A. in Colorado for ten years before becoming a District Court judge in Denver.

Maria Berkenkotter was a member of the Colorado Attorney General’s office before becoming a judge.

Carlos Samour is another former prosecutor, who worked for the district attorney’s office in Denver for a decade before becoming a judge.

Brian Boatright. The chief justice of the Colorado Supreme Court and a registered Republican, he worked as a prosecutor for nearly a decade, and then was appointed to be a judge.

We can see the intraclass battle being waged here amongst representatives of the ruling bourgeois elite. On the one hand, the centrist Democrat-aligned justices have every reason to want to exclude Trump from the ballot and, even more, those who have significant vectors of social oppression have an added incentive to see Republicans broadly disempowered. Keep in mind how the Colorado Supreme Court ruled, because this is how a party must and should act to retain power.

On the other hand, the Republicans of Colorado are divided into two groups. Overall, Republican politicians are generally weak in Colorado, and have been in a sharp decline. Indeed, after the 2022 midterm elections, a Republican state representative said “Colorado Republicans need to take this and learn the lesson that the party is dead. This is an extinction-level event.” The majority of the rump Republican party is very far to the right in Colorado, and has embraced MAGA-Republican far-right positions.

However, just as there exists a federal-level “left” wing of the Republican party — the old guard who want a return to the vaguely bipartisan system of suppressing the workers together with the Democrats in a friendly sparring match over policy and the distribution of money — there exists a much smaller “left” wing of the Colorado GOP. Norma Anderson — the Anderson of Trump v. Anderson — is a former state lawmaker and a “diehard Republican,” which should give you an idea of the animosity on the Republican right between MAGAcrats and the old guard.

The Supremes Say No

Every “progressive” “left-wing” justice (!) on the Supreme Court of the United States had less courage than their Colorado counterparts Gabriel, Hart, Marquez, and Hood. The Democratic party spin machine is repeating SCOTUS’ own tortured logic: that the decision to enforce the 14th Amendment is one that has to come from a federal body, not a state one.

The majority, excluding Republican Barrett and Democrats Sotomayor, Kagan, and Jackson, went on to decide that only the U.S. Congress can disbar someone for seeking office under Section 3 of the 14th Amendment — that no court, no agency, and no other authority has that power. This makes Section 3 a dead letter as there will never be an alignment of political forces that permits both chambers of the Congress to act together to ban a candidate for office, short of a single-party coup of the government.

These “progressive” justices did not act to preserve party power the way the justices in Colorado did. Why not? Because at the federal level the Democratic Party is unable to give to the left in any meaningful way. The potential of the party to act to smooth harsh conditions created by the decay of the U.S. imperial order has been totally exhausted. In essence, had the Democratic justices been successful in keeping Trump off the ballot the federal party would be forced to use further effective political tactics to give working people, students, immigrants, and the increasingly-exposed groups of the socially oppressed, who are all in peril, some kind of relief. It would prove that they, the federal-level Democrats, are capable of acting outside the barriers of propriety, and then they would be asked to do that for the benefit of their supposed constituents.

They know they can’t.

Fault Lines

We are seeing a division opening up between the state-level Democratic parties and the federal Democrats. The Colorado party is substantially more progressive and sits to the left of the federal party; it embodies the local interests of local bourgeoisie within Colorado, of which the elite financial/imperialist bourgeoisie play a very small part. With this smaller strata of imperialist bourgeoisie, the needs of the upper and middle ranks of the petit-bourgeoisie are much more strongly expressed, and thus we can see that state party politics in Colorado trend toward petit-bourgeois vacillation rather than open bourgeois reaction, which is the current trend in the federal party. 

The petit-bourgeoisie are business owners and professionals. Anyone who both owns the means of production (shops, specialized technical skills, small capital) and also works to support themselves are members of this class between classes. They have interests in common both with workers and with owners, which explains why their political consciousness tends to be confused. These include middle and small-time lawyers, accountants, etc. The big bourgeoisie are those who own big capital — major firms, investments, etc. — and who do not work. Petit-bourgeois political consciousness trends toward that brand of liberalism that demands equality for women by calling for “more women prison guards!”

The lower bourgeois/petit-bourgeois makeup and ideology of the state Democratic parties means these parties trend toward faux-progressive stances. They are now progressive, now regressive in turns, because the petit-bourgeoisie is caught between the truly progressive interests of the working class and the reactionary interests of property. Open bourgeois reaction is embodied by the Biden-”left” GOP alliance, and outright counter-revolution is embodied in the MAGAcrats.

At the state level, there is still some flexibility for the dying Democratic machine. There are funds to redistribute, there are enemies to expropriate from, and there are bases of power that don’t rely directly on the imperialist ruling class of the U.S. Empire to draw from. The glacial fracturing and break-up of the Democratic Party will see increased tension between state-level Democrats and their federal counterparts as their interests diverge.

Nevertheless, the federal party is still in the driver’s seat, as the outcome of Trump v. Anderson demonstrates. There may yet be a benefit in showing state-level Democrats that they do not have to align themselves with the corpse of their federal-level party. This is something that the masses of working people in the U.S. are more and more coming to realize: that the Democrats themselves must be rejected if the working people are ever to see relief.

If the argument in Relentless and Loper are any indication, the center-leaning minority of three justices on the court stand no chance of carrying even a single decision in the year to come. As Butcher Biden continues to unleash hell on the people of Palestine and his government at home breaks the backs of unions, enforces cruel debt recovery schemes, and fails to achieve major policy objectives, he and his rickety coalition are under attack from even farther right enemies within the ruling class. Going into the 2024 election year, we should expect this assault to grow in strength as the ruling class continues its consolidation around the farthest right reactionaries in government and abandons its pretensions to centrism.

What do these cases mean?

Relentless and Loper: Ending the Last Vestiges of the New Deal

The regulatory state is a term that describes the expansion of the U.S. government by the New Deal progressives. The U.S. federal regulatory agencies — the National Labor Relations Board, the Securities and Exchange Commission, the Federal Deposit Insurance Corporation, the Federal Trade Commission, the Federal Reserve System, the Environmental Protection Agency, etc. — are the result of this expansion of government. As you can see from the short list, many of these agencies were conjured into being by the Roosevelt progressives in order to “tame” the “excesses” of capitalism. The Federal Reserve, Securities and Exchange Commission (SEC), and Federal Deposit Insurance Corporation (FDIC) are designed to manage banking and money-flow and prevent enormous capitalist crises like the Great Depression. The National Labor Relations Board (NLRB) is designed to ease the conflict between labor and capital and act as a mediator between them.

These agencies were created to avert a revolution during the Great Depression. They were the conscious design of a cartel of “progressive” capitalists who had chosen to forgo immediate profits in order to adjust the long-term stability of the capitalist state. The unregulated markets that produced the Great Depression were supposed to be tamed, the rampant class warfare practiced by corporations (who had, until the late 1930s, frequently resorted to openly hiring mercenaries to break strikes by killing strikers) was meant to be brought under control. At the same time, this plan of progressive New Deal politics had, beginning in the early 1930s, reinvigorated the dead Democratic Party and created an unholy coalition of labor leaders, Black voters who were steadily being alienated by the realignment of the Republican Party, and social liberals by redistributing some of the profits of the capitalist class back to the suffering working class.

Obviously, that coalition has broken down. The New Dealers are dead. The extra profits have been clawed back. The agencies no longer provide much benefit to the working class, other than a tangle of regulations that capitalists see as intruding on their rightful domain. Do businesses want to be told that they have to comply with environmental regulations? No. Do they want the NLRB breathing down their neck if they crush a union drive with a little too much vigor? No.

The far-right wing of the reactionary ruling class has forgotten or doesn’t care about the systemic danger of removing the regulatory agencies. They see their rate of profit declining and are pushing to increase it. There are only a few ways this can happen, namely through warfare with foreign countries and the expansion of a colonial or neo-colonial empire, or through the immiseration of the U.S. working class at home. They long for a return to the 1890-1936 period of U.S. capitalism, before regulation and codified labor rights, when striking was a crime punishable by death.

If the court rules in favor of the corporations in Relentless and Loper, it will be the first step on the road to dismantling the federal regulatory state. Federal agencies are created by U.S. Congressional laws. Both of these cases represent an attack on the court’s deference to regulatory agencies reading of their own statutes and will invite the Supreme Court to peer into how the agencies regulate and control the areas they have been assigned authority. More important than this arcane legal question (which will dismantle fifty years of precedent and allow the court to intervene in any ongoing question before a federal agency) is that this will signal to the court’s far-right fascist allies that the time has come to bring a challenge questioning whether the federal agencies can exist at all.

The question in Loper is whether the Department of Commerce can require fishing boats to pay for the federal observers required by a certain law; the lower courts followed what is known as Chevron deference, stating that an agency can read its own statutes expansively, and the court grants deference to that reading. The same question is presented in Relentless.

In two years, the court could strike down and basically dissolve all executive regulatory bodies. In a stroke, this would deregulate all markets, end all labor rights, and open the doors for a full fascist reaction on every political front.

Fischer: Rehabilitating Far-Right Paramilitaries

The Fischer case is about the constitutionality of a charge brought against the January 6 putschists. Joseph Fischer, along with many of the other putschists, were charged with obstructing a congressional proceeding, a felony with a penalty of up to five years incarceration. This charge, a violation of 18 U.S.C. 1505, is the core of many of the prosecutions against the January 6 defendants. Fischer’s lawyers — and potentially the Supreme Court — argue that the law doesn’t apply, because the “obstruction” was intended to refer to interfering with an ongoing investigation, not physically occupying the capitol.

If the court rules in favor of Fischer, we can expect the already lackluster prosecutions of the January 6 putschists to begin to fall apart. Those who have already been sentenced will likely seek redress, and those who are awaiting sentencing or trial will make hay from such a ruling.

But that’s what it would be designed to do. By weakening this law, which will never be used against, for instance, poor or working-class defendants, the Supreme Court would thereby grant its blessing to the far-right putsch. We must understand this for what it is: unlike the hysterics by the Biden camp surrounding January 6, we cannot classify this as a “failed” coup; this was a putsch exercise that was never intended to make it as far as it did. This trial run was so remarkably successful that the leadership had no idea how to turn around and transform that success on the ground into political action.

Next time, they will.

Starbucks v. McKinney: Weakening the Unions

The McKinney case was brought before the Supreme Court by the bottomless legal fund of the Starbucks Corporation. In 2022, Starbucks fired seven employees in a Memphis, Tennessee store for attempting to unionize. Those workers filed a complaint with the National Labor Relations Board (which is under threat from Relentless and Loper as discussed above). The NLRB asked the U.S. District Court in Tennessee to grant an injunction requiring Starbucks to rehire those employees, and it did.

The Starbucks Corporation says that the District Court shouldn’t have granted that injunction, and that the way the NLRB gets injunctions is wrong. This more lenient test that the courts grant to the NLRB is part of the National Labor Relations Act, the law which created it. Starbucks and its lawyers are asking the Supreme Court to attack a core part of the National Labor Relations Act and strike at the NLRB’s power to compel corporations to behave in accordance with the law.

The growth of union drives and the expansion of the power of labor within the last three years has spooked the corporate owners of the U.S. ruling class. McKinney is part of the two-pronged attack by these interests on the rights won by the struggles of working people in the United States over the past century. Unlike the broader assaults of Relentless and Loper, McKinney is a direct blow aimed at weakening unions and their legal powers.

Should the Supreme Court grant the relief requested in Relentless and McKinney, it will only be a matter of time before the National Labor Relations Act is completely nullified.

Grants Pass: Killing the Poor Outright

The footsoldiers of American fascism are the local organizations of white supremacy. At the most granular level, they are represented by homeowner’s associations. The city government sits at a  level above the dreaded HOA, but still holds very local power. In Grants Pass, the power of the city government to criminalize homelessness is up for review. Critically, the currently controlling decision in Oregon is the Ninth Circuit decision of Martin v. Boise, which prohibits governments in the nine Western states under that court — including California — from punishing homeless people for sleeping outside when cities don’t have sufficient space in their shelters.

Last month, the U.S. Department of Housing and Urban Development (another executive federal agency) announced that more than 650,000 people were houseless in January of 2023, a 12% increase since 2022. Over a third of the nation’s unhoused population was in Washington, California, and Oregon, which each had more than 20,000 unhoused people at the time of the count. We know homelessness will be on the rise as the tidal wave of evictions follows the lifting of the rent moratoriums and renter’s assistance that ended when the government declared the end of the COVID-19 pandemic.

The court is being asked to prepare for the murder, arrest, and criminalization of tens or hundreds of thousands of unhoused people. This wave of evictions has been foreseen; the ruling class is aware that it will cause social unrest, anger, resentment, and prove the failures of the capitalist system. What are they doing to get ready for it? They’re training more cops in urban warfare and counterinsurgency, and they’re asking the Supreme Court to permit cities (and states) to proclaim unhoused people to be outlaws, subject to arbitrary search, seizure, and arrest.

A Dark Road Ahead

There is no doubt that these are grim tidings. The ruling class is eating itself alive, an ouroboros of recrimination and fascism, as it seeks some way to bring stability to the failing U.S. empire. It is critical for the advanced masses to be prepared; to foresee the acts of the ruling class; to prepare for them. Even if mass organization and direct action fails to prevent the Supreme Court from acting on each of these cases — even in the worst case where each passes into law — we must be prepared to mitigate the consequences and to organize those who will undoubtedly be thrown out of work, out of their homes, and abandoned to die in the streets by the uncaring machinery of profit.Forewarned is forearmed. And we must go armed.

The Supreme Court of the United States issued its decision in Arizona v. Navajo Nation last Thursday, condemning the Navajo people to surrender their treaty rights to water from the Colorado River and the other tributaries, streams, and sources that feed the Navajo reservation. This follows directly on the heels of the court’s Haaland decision which, as the Clarion predicted, marked not a high-water mark in the recognition of Indigenous sovereignty, but rather the beginning of a long-planned onslaught against the Indigenous peoples within the prison-house of the U.S. Empire.

Water is a precious commodity in the American West. Future desertification of the whole growing region is almost inevitable. The Navajo nation has been battling state governments for decades over the allocation of water in the region and the federal government for at least as long, looking for recognition of the rights that were promised by treaty.

In its duplicitous and cowardly Navajo Nation decision, the U.S. Supreme Court recast the issue; the treaty, they whine, only guarantees the Navajo Nation the right to water that flows into the reservation. If anyone were to redirect the water away from the reservation, then that’s just too bad. That water, they say, between the lines, has more use elsewhere — watering cash crops. As long as the $5 billion worth of agricultural industry is kept intact, so what if the Navajo people starve as a result?

The bulk of the opinion is actually an attack on the principle of the so-called “trust” that we discussed on Monday, the idea that the U.S. imperial state owes anything to the Indigenous peoples it has displaced, murdered, and betrayed. While Haaland made hay from the idea of the “trust relationship” in order to uphold Congress’s power to pass laws that govern Indigenous persons, Navajo Nation explicitly states that the trust relationship is non-existent. Justice Thomas dismisses the idea entirely in his concurrence. “[T]he idea of a generic trust relationship with all tribes — to say nothing of legally enforceable fiduciary duties — seems to lack a historical or constitutional basis.” Gorsuch and the three left-liberal justices alone — Sotomayor, Kagan, and Jackson — return to the treaty rights, to the sovereignty of the Indigenous peoples. But let us not forget that Sotomayor, Kagan, and Jackson also signed on to the main opinion of the court in Haaland, where the reactionary justices made it clear that the “period of treaty making” had ended and that the Indigenous peoples would be governed not from a sovereign to a sovereign but rather by the fiat of Congress, whose powers over them are “plenary,” an unassailable, hegemonic domination. Gorsuch clearly and plainly states the perfidy of the federal government:

The Navajo have tried it all. They have written federal officials. They have moved this Court to clarify the United States’ responsibilities when representing them. They have sought to intervene directly in water-related litigation. And when all of those efforts were rebuffed, they brought a claim seeking to compel the United States to make good on its treaty obligations by providing an accounting of what water rights it holds on their behalf. At each turn they have received the same answer: “Try again.” When this routine first began in earnest, Elvis was still making his rounds on The Ed Sullivan Show.

The Navajo reservation is the largest Indigenous reservation in the U.S. Empire. It encompasses over 17 million acres, and the tribe has enrolled over 300,000 members. The average non-Indigenous American citizen uses 82 gallons of water a day. The average Navajo person uses 7 gallons. In parts of the reservation, as much as 91% of the households lack access to water.

The court remains today what it has always been — the sword and shield of U.S. settler-capital. The decisions in Haaland and Navajo Nation could not appear more different on their surface, but if one looks beneath, it will become clear that they serve the same purpose: to grind the millstone of disenfranchisement and genocide.

Since its conception in the first English colonies, the U.S. colonialist project has been a genocidal assault on the Indigenous peoples of the Americas. Through the combined force of arms, biological agents, ecological devastation, starvation, kidnapping Indigenous children, and land theft — all propped up by the ideological force of a colonialist legal system — United States has stolen 99% of the land historically held by the Indigenous nations. Land is the basis of all economic organization as the most essential and basic building block of production; it is, as Marx said, “the universal subject of human labor,” and the original source of all wealth. By stealing land,the U.S. Empire has liquidated the economic basis of pre-colonial Indigenous ways of life and forms of social organization. The treaty territories were reduced to little more than government grants, administered  under the thumb of the Bureau for Indian Affairs. Existing property relations were forcibly dissolved, and replaced with a system of private property and enclosure, transplanted from England; conquered peoples were removed from their lands and forcibly converted into classes of smallholders, while the ruling families of a few “civilized tribes” joined the ranks of the slaveholding planters in the U.S. South. “Adoption” — the kidnapping of Indigenous children by white settlers, against the wishes of the child’s parents, community, and nation — has proved an effective weapon in genocides around the world, and has long been a staple of the U.S. colonialist regime. The U.S. Empire has never lost its originally genocidal character, and the legal theft of Indigenous children by settlers carried on until 1978, when Indigenous nations gained legal protections against kidnapping with the passage of the Indian Child Welfare Act (ICWA).

The Act, as the Supreme Court recognizes, “aims to keep Indian children connected to Indian families.” Under the ICWA, an “Indian child” is a child who is a “member of an Indian tribe” or who is “eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” If this child lives on a reservation, the ICWA grants the tribal courts exclusive jurisdiction over custody proceedings. If a state court adjudicates custody, the ICWA controls and overrides local state law. The parent or custodian and the tribe have the right to intervene in any custody proceedings, to request extra time to prepare for those proceedings, to examine all reports and documents, and for court-appointed counsel.

The ICWA gives the tribe the right “to intervene at any point” and to challenge the state court’s decree. The ICWA also codifies custody placement preferences for Indigenous children: “(1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.” State courts are required to follow these preferences. 

The case of Haaland v. Brackeen began when three white families, joined and sponsored by the fascist-captured State of Texas, challenged the ICWA, alleging that it infringes on their constitutional rights. Their grounds were as follows: First, that Congress never had the authority to pass the ICWA in the first place, rendering the law invalid. Second, that the ICWA violates anti-commandeering principles in the Tenth Amendment (essentially, that the law transforms state governments into servants of the Congress, conscripting those governments to spend their own money to enforce federal decrees). Third, that a provision in the Act allowing individual tribes to alter how it applies to them violates the non-delegation doctrine, the legal rule that Congress cannot pass off its law-making power to other groups, agencies, or organizations. Most importantly, fourth, that the ICWA uses “racial classifications that unlawfully hinder non-Indian families from fostering or adopting Indian children.” The plaintiffs unashamedly argued that the Indian Child Welfare Act is racist, because it protects Indigenous children from white kidnappers.

The challenge is the court case Haaland v. Brackeen. Deb Haaland, Secretary of the Interior, brought the appeal to the Supreme Court after the 10th Circuit decided in favor of Chad Brackeen and the other parties who seek to steal Indigenous children from their communities and nations. The 10th Circuit court held that the ICWA violated the Equal Protection clause — that, in essence, white would-be kidnappers had suffered racial discrimination.

On June 15, 2023, the Supreme Court upheld the ICWA by a vote of 7-2. Chief justice Alito and justice Thomas, infamous for standing out as extreme-right fascists even among a far-right Supreme Court, stacked with recent Trump appointees, are the two dissenters. Although the majority upheld the ICWA, they did so on the narrowest possible grounds while laying out the legal justification for the law to be challenged in the future. They clearly and unequivocally restate the principle, often expounded by the U.S. imperial government, that Indian sovereignty has ended.

How does the court justify the ICWA? The far-right justice Barrett, a Trump appointee, wrote the majority’s decision. She states that “Congress’ power in this field is muscular, superseding both tribal and state authority,” and that “[V]irtually all authority over Indian commerce and Indian tribes lies with the Federal Government.” Then, when discussing the treaty clause of the U.S. constitution, she off-handedly remarks that “[u]ntil the late 19th century, relations between the Federal Government and the Indian tribes were governed largely by treaties.” Now, however, she argues that Congress can legislate Indian affairs based on what she euphemistically calls its “trust relationship” with the Indigenous nations — the paternalistic, white saviorist, nonsensical position that, by subjugating this continent’s Indigenous people through centuries of brutality that have scarcely been paralleled in history, the “Federal Government has charged itself with moral obligations of the highest responsibility and trust toward Indian tribes.”

Barrett thus handily does away with the major arguments of Brackeen and his fellow litigants, but only with a sweeping restatement of Congressional authority. Yes, says Barret, Congress does have this power, because Congress possesses plenary and ultimate authority to govern Indian affairs. The civil rights of Indigenous families, children, communities, and nations are “safe” from encroachment by the states and by white private citizens — but only because the Indigenous nations are under the watchful eye of their shepherd, the U.S. Federal Government. In the instance of the ICWA, Congress was kind and benevolent; should Congress determine it wishes to be less generous — that it wishes, for example, to extinguish all remaining reservations and duties to the Indian nations — it could just as easily do that.

Most importantly, the seven justices held that the Supreme Court actually can’t decide on the Equal Protection claim brought by Brackeen. This is the bomb buried in Haaland. The left-fascist Democrats and their allies long ago established that the equal protection clause of the U.S. constitution applies to the oppressors as well as to the oppressed, in essence, enshrining the idea of “reverse racism,” or “misandry.” Any government agency that “discriminates” against white men can be found in violation of the equal protection clause. Smirking lawyers remind us that the constitution protects us all equally, not all equitably. The equal protection issue raised (but not reached) in Haaland is the claim that the ICWA disfavors white parents. This issue wasn’t decided because the case was procedurally improper for deciding it. The court could have run roughshod over the posture, but it would have been too bold a move, too openly flaunted the political nature of the court, which of course postures itself as “above” politics while engaging in fundamentally nothing else.

In an obscure bit of lawcraft, Barrett states, “Article III requires the plaintiff to show that she has suffered an injury in fact that is ‘fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.’ Neither the individual petitioners nor Texas can pass this test.” The Court declined to make a ruling simply because Brackeen and his fellow petitioners brought their case in the wrong court — a legal technicality. Barrett doesn’t reach the question of whether they were right at all. Why? Because the Supreme Court cannot order the state courts and agencies, which were not brought as parties to the suit, to do anything about the enforcement of the ICWA. In a footnote, Barret archly remarks that “[o]f course, the individual petitioners can challenge ICWA’s constitutionality in state court.” She is signaling that the state courts of Texas can and should bounce this issue back up to the Supreme Court for a proper adjudication — this time, in Brackeen’s favor.

Nor can we afford to lose sight of the fact that the liberal justices didn’t write any of their own concurrences to articulate alternate grounds for the decision. Although they compose an absolute minority of the court, concurrences nevertheless allow judges who sit on the weaker side of the court to stake out positions they can defend, both to the other justices who might be persuaded to adopt their arguments, and, perhaps more importantly, to the public (especially in this instance when the court’s legitimacy has been repeatedly brought into question by the highly public war between the two wings of the ruling class). But the liberals on the court — Kagan, Sotomayor, and Jackson — didn’t write anything. They joined in the decision written by Barrett, endorsing the majority’s view that the Indian nations are the child-like wards of the Federal Government and that, should the U.S. Congress so decide, treaty rights and tribal sovereignty can be dissolved at any time.

Surprisingly, the far-right reactionary justice Gorsuch wrote a concurring opinion, in which he details the historical injustices dealt by the U.S. Empire to the Indigenous nations of North America. He writes, “[I]n those early decades, [the 1850s–1860s] schooling [to assimilate Indigenous children] was generally not compulsory” but that “[t]he federal government had darker designs.”

By the late 1870s, its goals turned toward destroying tribal identity and assimilating Indians into broader society. Achieving these goals, officials reasoned, required the “complete isolation of the Indian child from his savage antecedents.” And because “the warm reciprocal affection existing between parents and children” was “among the strongest characteristics of the Indian nature,” officials set out to eliminate it by dissolving Indian families. …

Certain States saw in this shift an opportunity. They could “save… money” by “promoting the adoption of Indian children by private families.”

This restarted a now-familiar nightmare for Indian families. The same assimilationist rhetoric previously invoked by the federal government persisted…. “If you want to solve the Indian problem, you can do it in one generation,” one official put it.

Despite this acknowledgement, Gorsuch, too, argues that the federal government has ended its treaty-making period with the Indian nations. However, in contrast to Barrett, he puts it this way:  the sovereignty of the Indian nations “creates a hydraulic relationship between federal and tribal authority. The more the former expands, the more the latter shrinks” but “the only restriction on the power of the Tribes in respect to their internal affairs arises when their actions conflict with the Constitution or the laws of the United States.” Sotomayor and Jackson joined in this portion of Gorsuch’s concurrence, creating a three-justice minority who still nominally recognize tribal sovereignty — at least, for now. None of the justices, however, would bat an eye should Congress unilaterally abolish this legal fiction.

This is in sharp contrast to the majority and to both the dissent written by Thomas and that by chief justice Alito. Thomas’ dissent is filled with vile, white supremacist logic, laying bare the actual underpinnings of the legal regime: “For today’s purposes, I will assume that some tribes still enjoy the same sort of pre-existing sovereignty and autonomy as tribes at the Founding,” he muses, indicating of course that no contemporary Indigenous nation has retained real sovereignty, that all are under the federal government’s thumb, and that “tribal sovereignty” is a legal fiction. More than that, Thomas argues the familiar refrain of the genocidaire that the genocide is already mostly complete; that the remaining Indigenous tribes are merely “remnants of tribes that [have] been absorbed” by the individual states and assimilated into the colonizing population; that there are no “real Indians” left to defend their rights and sovereignty and to fight for their liberation. Thomas ends his dissent with a damning statement, one that outlines the limits of the Haaland decision: “[T]he majority holds only that Texas has failed to demonstrate that ICWA is unconstitutional.” In other words, what remains of tribal sovereignty in the U.S. Empire is still in the fascist Supreme Court’s crosshairs — and everyone knows it.

It is the extremely brief concurrence of the reactionary Kavanaugh that encapsulates the fundamentals of the majority’s decision, displaying, as Thomas does, the danger and the purpose: “I write separately to emphasize that the Court today does not address or decide the equal protection issue.” They are begging for a chance to hear the case again, but properly plead, and properly situated. The fascists intend to strike down what remains of the sovereignty of the Indian nations — the right-wing fascists openly, and the left-wing fascists by quiet assent. The fascists want every opportunity to bring to completion the anti-Indigenous decisions issued by their less brazenly reactionary predecessors, before the Supreme Court’s recent extreme-right capture during the Trump presidency.

It is, perhaps, in recognition that the great masses of the U.S. working class no longer sees the Supreme Court as some defender of the downtrodden, that there is now, in the political and public discourse, a powerful undercurrent that correctly identifies the court as an illegitimate, anti-democratic institution that serves to protect the ruling class. The court expresses capitalist class-power, nothing more. For true, people’s democracy to rule, the reactionary power of the court must be destroyed. For the colonially oppressed peoples to achieve liberation, on the basis of real sovereignty, the Supreme Court, and the whole existing U.S. Constitutional order, must be abolished.

The battle over gerrymandering has been fought since the introduction of the current political machine by antebellum Democrats in the early mid-19th century. In fact, the term comes from 1812 and the redrawing of Massachusetts electoral districts by Governor Elbridge Gerry, when he redrew a district in Boston to look like a salamander on a survey map. The practice is designed to combine various districts so that the voting population of the enemy — the party not currently in power, whichever that may be — is concentrated in the fewest number of districts or broken up so that they are counteracted by larger numbers of the party doing the drawing. Gerrymandering is nearly as old as elections in the U.S. and almost coeval with the founding of the U.S. settler-republic itself.

It has always caused righteous and justified outrage among the people who are actually doing the voting. By its very nature, Gerrymandering is anti-democratic. In electoral regions where the ruling party has a safe majority of the votes, there’s no reason to Gerrymander. It’s only where the ruling party is slipping from power or foresees a loss in voters that it goes to the district maps and tries to draw the borders in its own favor.

In 2019, the Supreme Court of the United States, stacked with right-fascist jurists, ruled that partisan gerrymandering, even when “excessive,” was “nonjusticiable” and involved “political questions.” This was the case of Rucho v. Common Cause, 139 S. Ct. 2484, 2491, 2507 (2019). In the everyday language of human beings, this tortured legal-speak means that, should a political party redistrict your entire state to make sure it, and it alone, can win elections in the future, the courts have no power to aid you. “Nonjusticiable” means there is nothing the court can do; a “political question” is one that the courts have decided must be fixed by elected representatives. Never mind that the gerrymandering itself makes it impossible to elect representatives who would undo the partisan redistricting.

Under a little-used and even less-granted rule of procedure, the legislature of North Carolina asked their state supreme court permission to re-argue a case that had been decided once already last year, when the judges of that court had held a Democratic majority. That case, Harper v. Hall, 380 N.C. 317, 390 (2022), had determined that the North Carolina constitution prohibited partisan gerrymandering.

On 28 April, 2023, the Supreme Court of North Carolina, newly-packed with pro-gerrymandering right-fascist Republicans, overruled Harper v. Hall. The new Harper v. Hall ruling explicitly mirrors the decision of the U.S. Supreme Court in Rucho v. Common Cause — that is, since the redistricting has already been done, there’s no way to fix it. The question is, in the twisted language of the law, “nonjusticiable.” In other words, to those who have lost the ability to have their voices heard in even the meager and anemic elections we’ve become accustomed to in this dying bourgeois republic, the answer is: “Too bad!”

Gerrymandering: the Legal Landscape

The most prominent gerrymandering cases were, of course, all within the territory of New Africa — that band of fertile soil in the U.S. South where the biggest and most prosperous slave plantations were founded, which imported the most Black African slaves, and which are, consequently, today the regions where most Black people in the U.S. Empire live. The practice of redistricting to disenfranchise Black voters came under federal scrutiny in the 1960s and was explicitly outlawed by the Voting Rights Act of 1965.

Under the liberal order, any victory secured by the oppressed, by the laboring masses, is subject to reversal. Liberalism, and in particular the brand of left-liberalism popular among the functionaries of the Democratic Party, functions on the level of form rather than content. To the left-liberal, there is no higher principle than applying, however unequally, the same form to many situations and arguing, from the fact that the form remains unchanged, that this, in some abstract and metaphysical sense, represents equality. 

It was only a matter of time before this liberal mania of honoring procedure and process over results caused an utterly ludicrous shift in the very meaning of the law. Although the fight against gerrymandering had taken on an explicitly anti-racist cast, it would, in 1993, be used to deprive a Black population of its political power.

Shaw v. Reno, 509 U.S. 630, was a 1993 U.S. Supreme Court case that came up out of North Carolina. In the 1990 census, North Carolina qualified for a new electoral district. This district was drawn by the North Carolina state legislature in a “snake-like” manner to create what is called a “majority-minority” district; that is, the new electoral district was majority Black. North Carolina was under the rule of the Voting Rights Act, which meant any redistricting had to be approved by the federal government, which would approve or deny the redistricting based on a test as to whether the new districts jeopardized minority presentation. The Justice Department accepted this new district.

Ruth O. Shaw and a group of other white residents sued the U.S. Attorney General and various state officials over the plan. The Supreme Court, then under the conservative right-fascist leadership of Justice Sandra Day O’Connor, ruled that the electoral district, because it separated out Black voters, was an effort to segregate races and was therefore a violation of the white resident’s constitutional right to equal protection under the law. You’re reading that right: the redistricting was held to be unconstitutional because it violated the white resident’s rights by attempting to ensure that Black voters were heard in North Carolina, a state with a historical record of suppressing the Black vote.

Now that the reactionary elements had realized they could use the anti-gerrymandering rules to their benefit, a drive kicked off to make gerrymandering illegal on its face and reverse the gains made by the Black voters of the South throughout the 1960s and 1970s. This legal push has resulted in the modern division of gerrymandering into two categories: the legal, and the illegal.

Racial gerrymandering is still per-se illegal. But, thanks to a string of U.S. Supreme Court decisions culminating in Rucho v. Common Cause, politically partisan gerrymandering is not. That is, it is illegal to design an electoral district such that Black voters are concentrated and can form a majority, but it is not illegal to design an electoral district such that Republican voters can form a majority.

Under the hood of the bourgeois democracy under which we live, district-drawing is one of the mechanisms used by both parties to try to gain an advantage in the federal government. Both Democrats and Republicans aggressively redistrict to shore up seats where they’re weak. Unlike the Democrats, however, the Republicans have been pursuing a united strategy for redistricting since 2010. REDMAP (the Redistricting Majority Project) was founded in that year and the Republican party has poured some $30 million dollars into this project. Over the past 23 years, REDMAP has used computerized mapping software to help redraw hundreds of districts in each round of redistricting. By 2012, the Republican party had already received an enormous benefit in the U.S. House of Representatives. Today, many states that were formerly controlled by Democrats are now bastions of Republican power thanks to this, and other efforts to control which votes are counted and which are neutralized.

Voting in the Bourgeois Republic

Once every few years, the workers in the United States Empire have been accustomed to being given the opportunity to engage in a piece of political theater: voting which wing of the great vulture will be in charge of our oppression. State ideologists, textbook authors, and talking heads on television cloak the bourgeois republic in the dizzy and eager language of democracy. We, the working people, know better. This is shown in every election in our lifetime. Voter turnout in the presidential elections, for instance, has hovered between 50 and 65% throughout the entire 20th and 21st century. Why don’t people vote? Because they know, both from history and experience, that their votes don’t matter.

Why don’t the votes of the working people matter? There are numerous ways and means used by the ruling class to denude, sift through, sort, and screen the votes of the working people. To address them all would be an involved exercise, but some of the ways the power of the democratic vote is reduced and winnowed away include: first-past-the-post elections, election days coinciding with work time, polling stations that are inaccessible, the electoral college, huge costs of running a campaign for office, and the worst and most potent tool of the ruling class of all: backroom dealing. We all know that the way politics works in this country is that moneyed interests talk directly with politicians outside of the view of the public. Even supposedly “progressive” politicians take pride in their ability to manipulate the system of deals, bargains, and secret handshakes that pervades the halls of power. The fact of the matter is, all the decisions made by our politicians are made in private. We are never in the room. The money is.

But because the power of the vote is often useless or meaningless, that doesn’t mean it’s always meaningless. There have been times when the vote has mattered. There have been times when the vote has shown an expression of collective rage, even of class power! Those times are few and far between.

More importantly, though, the franchise, the right to vote, has expanded significantly since the settler-republic was first founded. Initially, only propertied white men of English heritage could vote in most states (and, consequently, in federal affairs). As this changed, the power of the vote was reduced, to prevent what the liberal hysterics refer to as “mob rule” or the “rule of the many.” (Why are they so afraid of the rule of many? Because they are the few!) In liberal democracy, enfranchisement is not political power in its own right, but rather an indication of which segments of the population the ruling class deems important enough to placate. 

So why should we be up in arms about voting rights, which we have just agreed don’t mean much, being taken away? Here’s why: Those rights have been secured through bloodshed. They are the concession, wrung through the centuries of hard class struggle, that we have forced from the ruling classes. It’s not so much the fact that we begrudge the blood-suckers and parasites in our government or the bloated hypocrites that own the companies and thus the country the right to participate in their dog-and-pony show. But winning the vote was a step toward winning the political battle. Losing the vote — watching them strip it away from us with gerrymandering and other tricks — that demonstrates not only the disdain in which they hold the working people and the nationally oppressed, the disgust they have for you and I, but it is the worrying and dangerous call of the rise of open violence and reactionary attack.

What should stir our blood is not that our voices carried weight with the ruling class, but that we are now being told not to talk at all. The fact that they feel no need to operate under even the scant theater of pluralism and popular will should concern everyone.

The Sharpening of Partisanship 

Since the 2016 elections, following on the heels of Republican victories in redistricting in the early 2010s, partisanship has sharpened on the right side of the aisle. The GOP has been tilting steadily rightwards into more and more brutal forms of right-fascism since 2001, and in 2016 the far-right fascist element within the party won control, not only of the party, but of the entire country.

We are now in an era where the entire U.S. government at all levels stands divided between the left-fascists, who merely want to see a stabilization in the current capitalist world-order, and the right-fascists, who call for increased exploitation, white class collaboration, and much more vigorous suppression of the growing Communist movement within the empire.

The Supreme Court of North Carolina lost two of its Democratic Justices last year, and these were replaced by Republican Justices. This is what enabled the clever maneuvering by the North Carolina legislature to get the case in which gerrymandering had been rendered illegal under North Carolina law heard for a second time before a new, sympathetic — we might even call them co-conspiratorial — court.

This battle between the left-fascists and the right-fascists is playing out not only in the political arena, where it traditionally has been fought, but also in the country’s courts. Long having pursued a project of planting arch-conservative lawyers into positions of high authority in both state and federal courts, the GOP is now poised, pushed by its dominant far-right wing, to deliver body blow after body blow to their political opponents. The reversal of Harper v. Hall is one such stroke; and because the Democrats had relied upon the oppressed Black masses to support their capitalist program, it is also a blow against the already-shaky structure of the bourgeois “democracy” enjoyed under the empire.

Harper v. Hall

The Democrats, and by extension (though of course, not by design) the people of North Carolina, won Harper v. Hall in 2022. This was a case brought in 2021 by the North Carolina League of Conservation Voters and individual voters joining together to file suit against the president of the North Carolina senate, the speaker of the North Carolina house, and the chairs of the redistricting committees, challenging the constitutionality of the redistricting maps that were drawn. The maps, of course, only got that far because the U.S. Supreme Court had repealed key sections of the Voting Rights Act, mentioned above.

On 20 January, 2023, the legislature of North Carolina filed a motion for rehearing before the new, right-fascist Supreme Court of North Carolina. The court gave no real reason for its decision to rehear the case (“a recently issued opinion appropriately is reheard if the petitioner makes a satisfactory showing that this opinion may be erroneous” was all the logic it provided). It needed none! The GOP-controlled court reheard the case because they wanted to reverse it. On 28 April 2023, they did exactly that.

In its new decision, the Supreme Court of North Carolina sneers, “such claims ask courts to apportion political power as a matter of fairness…. Individuals have no constitutional right as members of the public to a government audience for their policy views.” Harper at *48 citing Minn. state Bd. for Cmty. Colls v. Knight, 465 U.S. 271, 286 (1984). (emphasis added.)

The left-fascists still cling to a form of bourgeois democracy, but increasingly the right-fascists have determined that even the shreds of participation in government that have been won over the past century and a half are too dangerous to the ruling class. This is a naked, undisguised attack on democratic participation in government. We should read the decision of the Supreme Court of North Carolina in the same terms that they state it: 

As long as you get to cast a vote, the fact that it is purely symbolic doesn’t matter.

Mifepristone, one of the most common abortifacients in the country, and one accepted as safe and effective not only by the FDA but by a consensus of experts and doctors, was first approved for use over twenty years ago, in 2000. As right-fascist reaction against women’s and LGBT civil rights surges through the country, old political “gentlemen’s agreements” between the right and left wing of U.S. fascism, represented by the decaying Republican and Democratic parties, have begun to collapse. The long-standing agreement between the left and right wings of fascism concerning mifepristone is the latest victim of the growing disharmony within the U.S. ruling class and among its lackeys.

The pendulum of U.S. fascism has never been stable. Since this country’s founding, the balance between the more and less reactionary ruling classes has been achieved through civil wars, terror campaigns against the colonized peoples, periodic economic crises, and occasional concessions to the struggling masses. Ours is a reactionary period. Over the last few decades, the pendulum has been spinning increasingly off-balance. Since the rise of the neoliberal reaction (the so-called “third way”) in the late 1980s and early 1990s, the actual effect of the Democratic Party’s policies has been to act as a stabilizer, allowing the increasingly vicious agenda of the GOP and the right wing of reaction to progress in four- and eight-year strides, broken by four- and eight-year Democratic “reprieves.” One administration at a time, the GOP has been steadily chopping away at the progress made by the working classes and their allies over the course of the 20th century. The Trump presidency, rather than an aberration, was a normal continuation of this process, and the wave of Trumpite reaction that followed in his wake has thrown this teetering system into ever-greater disarray as the right becomes increasingly hostile to the old left-fascist consensus.

In the debate over abortion there are two major camps within the ruling class. On one side stand the left fascists, who are joined by ruling class interests like drug giant Pfizer. They currently hold tenuous control over the U.S. Empire’s government apparatus. On the other side are open social reactionaries, the most vicious of capitalism’s domestic faces, who have been planting ever-broader roots among the most violently reactionary segments of the population. The right-fascist crusade against women’s and LGBT civil rights is a positional war against rival factions of the U.S. ruling classes — the monopoly capitalists. This latest play over mifepristone is yet another step in the right-fascists’ Napoleonic conquest of this country’s halls of power — the courts, the legislatures, and the executives — from the state to the federal level. This vile strain of U.S. fascism will not stop until it has reshaped this settler-colonial empire in its own white supremacist image. 

The mifepristone ruling itself and the legal doctrine behind it are little more than arcane legal trickery — a game for the capitalists’ competing teams of lawyers. Going back to the year 2000, before the 2008 crisis and the accelerating decomposition of the capitalist world-system that we see today, there was substantially more agreement between the political wings of the ruling-class duopoly. The initial approval of mifepristone was made by the FDA using a subsection of its regulatory powers, “Subpart H,” reserved for the speedy approval of drugs designed to treat “serious or life-threatening illnesses.” In other words, Subpart H was essentially designed for the rapid approval and deployment of drugs that had undergone extensive testing, were proven safe and accepted as such by an expert consensus, and were urgently needed to mitigate public health emergencies.

No one cared, in 2000, that the FDA used this particular subsection to approve mifepristone, as it’s done with thousands of other safe and effective medicines. Like every legal controversy that arises within the U.S. legal system, this didn’t matter until someone with capital and political influence decided to make it matter. Twenty-three years later, the breakdown of this tacit compact leaves the right of millions of people to access yet another means of safe abortion, yet another basic and essential reproductive medicine, at the mercy of one unelected judge in Texas. 

Kacsmaryk’s ruling is not the last word in the matter. For one thing, it was a temporary order at an early stage in the litigation over this ludicrous technical detail in the FDA’s approval process. The final decision as to whether the FDA overstepped its bounds (and do we believe that’s the real issue the right fascists are complaining about? A minute detail about regulatory choices?) will only come at the end of lengthy and expensive litigation — terminating, in all likelihood, at the Supreme Court. Should the ominously-named Alliance for Hippocratic Medicine win its challenge, it would not only threaten the bodily autonomy of millions of people across the U.S. Empire, but would also condemn thousands, if not millions, to ineffective and dangerous “alternative medicine” treatments for unwanted pregnancies, miscarriages, and other gynecological problems.

Late last Wednesday night, the Federal Court of Appeals for the 5th Circuit (covering the Federal Districts of Texas, Louisiana, and Mississippi) struck down portions of Kacsmaryk’s punitive ruling. Tellingly, other portions were left standing. Although mifepristone will still be available, all expansions of the FDA’s approval — including its 2016 decision to allow non-M.D. mifepristone prescriptions and its 2021 ruling to permit mail-order prescriptions, both to ease barriers to access — were rolled back to foresee the outcome of the Texas legal battle. Last Friday, Justice Samuel Alito blocked the remainder of the ruling, preventing it from going into effect until 11:59 p.m. EST, Wednesday, April 19. This is to give the Alliance for Hippocratic Medicine time to file their responses (which are due noon EST Tuesday) and for Kacsmaryk to read it before he issues yet more sweeping anti-mifepristone rulings.

This is exactly the kind of response from Democratic left fascists — our so-called “progressives” in government — that we should expect. Mifepristone will continue to be available — to bourgeois, ruling-class women. But this medicine, like so much healthcare in the U.S. Empire, will be denied to the toiling millions who cannot afford to visit the doctor, who have no insurance, who cannot go to the drug store where it is dispensed. To our capitalist rulers, these millions are merely pawns on a political chessboard.

Should we expect the Democrats to fight this latest ruling? Yes — but only because the enormous weight of the drug companies is behind them. But the fact is that the left wing of the ruling class has repeatedly exposed itself as feckless, aloof to the machinations of its right-wing rivals, and impotent. Yes, they will fight, but never to win. The tide of reaction is rising; we must prepare for its advent — not by voting for the Democrats, not by attempting to change the dictatorship of the capitalists for the better, but by building working-class power where we stand. There is no relief coming from the criminally useless left wing of Capital. If relief comes from anywhere, it will be from us, the working classes, the hundreds of millions whose labor keeps this country running, whose exploitation makes the capitalists rich, and from our organized class action.