By 1965, the old slave power had managed to beat back Reconstruction and establish itself as a constellation of terror-states in the U.S. South. While the capitalist ruling class in the North was content to hide or mystify the national oppression the U.S. system relied on, for the defeated Southern planter class and their petty-bourgeois hangers-on, this sublimation wasn’t enough. They were either ideologically incapable or materially incapable of joining the northern capitalists in adopting grand-sounding language about equality while maintaining the national oppression of New Afrikans and Indigenous Peoples; their deep-seated ideological commitments required them to constantly express their white supremacy in overt and terroristic ways. Sitting atop a semi-colony of brutally oppressed people, the ruling class in the U.S. South had, as the slaver Jefferson said, “the wolf by the ear.” In order to feel safe in that great prison, the Southern ruling class had to maintain absolute, fascistic, political supremacy over the Black population.

Indeed, the southern whites had been more or less permitted to do just that in the long period between the overthrow of radical Republican Reconstruction in 1877 (the period known to the Southern whites as “Redemption,” that is, redemption of the white supremacist power and the defeat of New Afrikan self-governance) and the alliance that emerged between Black World War II veterans returning to the South and the growing Black petty bourgeoisie. This period lasted from roughly 1877 until 1950.

In 1941, the racist policies of the FDR administration were challenged by A. Philip Randolph and his Black March on Washington; in 1954, the Supreme Court ended the legal basis for segregation in public schools when it decided Brown v. Board. Northern capitalists were insistent on bringing the southern slaveocracy into the modern day, not for moral reasons, but for economic ones. In 1957, the federal government passed the Civil Rights Act, the first signed into law since 1875. These decrees from on high were motivated by the need to free up labor in the Black Belt from the regressive agrarian prisons that the colonial relations still kept them in; but none of these decrees changed the balance of power in the South. Black New Afrikans in the semi-colonial states were held in a vice of property and labor theft, rape, arson, lynchings, and undisguised murder. In the U.S. South, the state ruled by terror. Despite the promise of the amended U.S. constitution, Black people who registered to vote took their lives in their hands.

At the end of the 1950s, the militant streams of Black resistance gained more and more currency and began to unite. These were often spearheaded by Black veterans or radical Black students, many of whom were explicitly Communists — Marxist-Leninists or otherwise. This period saw the rise of Malcolm X, the Black Panther Party, and of the Southern Christian Leadership Conference.

The passage of the Voting Rights Act was the result of a tightening labor market in the U.S. at the same time that militancy was increasing and the consciousness was widening for the support of a Black national movement.¹ Economic pressure joined with the Black drive for liberation. There was a real fear in the halls of power that the U.S. state could face a Black domestic insurrection and an increasing desire to see the fragments of the Southern planter class and their dependents defeated entirely, to consummate the triumph of free labor, as opposed to low-productivity sharecropping and semi-slave labor that still reigned in the South. Even the former planters themselves had begun to realize that they couldn’t continue to manage their sections of the country by relying purely on terror. They realized they needed to find a way to accommodate the form and appearance of equality while maintaining the white supremacist content of the slaveocracy.²

The VRA established a relation between the planters and the federal government that was similar to that of Reconstruction. Its general provisions under section 2 of the law prohibit state and local governments from enacting any law or rule that denies or abridges the right of any citizen to vote on account of race, color, or membership in a language group. Other general provisions outlaw literacy tests and poll taxes. The special provisions granted the federal U.S. Attorney General and the District Court for DC power over Southern elections, redistricting plans, and so forth, that essentially put the Southern states into a kind of federal receivership for the purposes of voting.

The War on the Voting Rights Act

Although the VRA was a necessary concession to save the capitalist state by creating a veneer of participatory democracy in the US South, it wasn’t fully implemented all at once. This gave the ruling class time to find ways to empty the vote of its power. There remained, however, a significant faction within the broader US capitalist class itself for whom the VRA remained ideologically intolerable. Existence of international pressure from the Soviet Union and the national liberation and Pan-African movements forced the US to maintain this veneer. With the fall of the USSR and the declining world-position of the US ruling class, this clique of ideologically devoted racists has gained more and more adherents from their bourgeois colleagues. 

The Federalist Society is one of the bastions of the movement to reverse the changes in the US legal landscape and return to the early 20th century when capital openly ruled the courts.³ In 2013, the US Supreme Court, that bastion of ruling-class power,⁴ nullified the powerful special provisions of the VRA in Shelby Counter v. Holder. In the 2021 decision Brnovich v. Democratic National Committee, the Supreme Court weakened the general provisions of section 2 of the VRA. Now, the court is poised to rule on the constitutionality of section 2 as a whole. The legal war waged by the growing right-fascist bloc for half a century is nearing its conclusion. We must ask: does it matter if section 2 is struck down? If it does, why and how? Is there any way we can agitate around this issue? Does it mean we Marxists must join hands with Democrats and other fragments of the ruling class?

To briefly answer each in turn: firstly, yes; secondly, it is a sign of how advanced the imperialist decay is; thirdly, yes again; and, finally, absolutely not!

What Will Be the Outcome?

Despite the fact that the VRA in and of itself cannot guarantee anything, and despite the fact that its passage was an accommodation that was fashioned as part of an overall effort to pacify Black militancy and disarm the Black national revolutionary consciousness of the 1950s and 60s, it is actually of great importance to us whether or not the fascist court strikes it down. Oral arguments in Louisiana v. Callais have already signaled that the court does intend to roll back this final element of the VRA. This is part and parcel of the right-fascist drive to restore capitalists to open and undisguised power in all aspects of political and legal life. It dovetails with the same right-fascist attack on the administrative state presently being carried out under the guise of the shutdown, a political “conflict” in which the left-fascist Democrats are playing the role of useful idiot.⁵ Given the disposition of political forces and the economic situation (increasing inflation and unemployment) it is likely that the VRA’s section 2 will be struck down.

The fate of the VRA is a bellwether for the degree of decay of the old US imperialist system that prevailed from 1991 until today as well as the balance of power between the left- (Democratic/Progressive) and right- (GOP and MAGA) fascist cliques within the ruling class. If the VRA is struck down, Democratic Party operatives will ceaselessly and breathlessly fund raise and proclaim their old doctrines about emergency organization in the face of “Trumpist” fascism and the need to permit people from both sides of the color line to participate in and enjoy the capitalist system. In private, of course, they will signal more cynically that it’s just good strategy to give the nationally oppressed the illusion of democracy. After all, they will say to their donors in closed-door dinners, it’s not as if the masses of Black people — or for that matter, any working-class voters — actually have any way to influence the important policies of the US state.

If the VRA is struck down, it signals the right-fascists are extremely advanced on their path toward carrying out the genocide of the nationally oppressed that they have been preparing for Black and Indigenous people in the US.⁶ Striking down the VRA would remove entire layers and battlefields of intra-bourgeois political struggle — layers that are “wasteful” in the eyes of the ruling class, just like the “waste” of the administrative state that they are dismantling — but would also strip away the illusion that the US state can be altered by the oppressed voting in any meaningful way.

What Is Our Task?

If the VRA is defeated, the Democrats will attempt to lead the movement that organically emerges in reaction. Many will rightly be afraid of what the loss of the final provisions of the VRA mean for the nationally oppressed and other groups openly targeted by the right-fascist government. We cannot allow this to happen. Democrats will naturally frame the question as one of government participation. They will start new voter registration drives, demand mobilization to defeat the right-fascists at the ballot box, and exercise a full-court press for the election of Democrats to the Congress and in local government.

We must instead first agitate against the new terror-government directly, then propagandize to expand the consciousness of the masses to connect the striking down of the VRA with the entire rotten system. It will be clear to many that there are no self-correcting measures available. With the open and legal disenfranchisement of Black voters in the South and other right-fascist strongholds, the layer of mystification that promised government responsiveness to the people will be gone.

Now is the time to prepare for the VRA to be removed. Now is the time to lay plans. If it is not, and the right-fascists instead uphold the remaining section to buy more time before carrying out a direct assault on the ballot box, then our preparations won’t have been in vain; we can still carry out agitation and propaganda on the basis that the VRA could have been struck down, and likely will be struck down in the near future. We must broaden the call to include other landmark rulings and laws that were offered during the heyday of empire — Griswold v. Connecticut, Lawrence v. Texas, Loving v. Virginia, Brown v. Board, and Obergefell v. Hodges — and warn that they too stand to be struck down by the right-fascists.

The moment is ours; the Democrats must not be allowed to stand at its head.

Footnotes

1. The tightening labor market put the pressure on to mobilize and “free” tied up labor; business interests wanted to draw from the pool of sharecroppers in the Black Belt.
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2. “By the 1950s the language of white supremacy was gradually softening in some quarters, becoming less shrill in an attempt to gain respectability for racism. Phrases like ‘states’ rights’ and concepts such as the need to protect ‘constitutional liberties’ from communist subversion and federal intervention were becoming stand-ins for raw racial rhetoric.” Cobb, Charles E. Jr. This Nonviolent Stuff’ll Get You Killed: How Guns Made the Civil Rights Movement Possible. Duke University Press, 2015.
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3. See The Society Behind the Supreme Court’s Fascist Blitzkrieg in the Clarion.
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4. See Capital’s Supreme Defender in the Clarion.
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5. See This Land Ain’t Your Land: The US Government Shutdown in the Clarion.
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6. See DC Occupation: Coming to Your City Next in the Clarion.
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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.

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.

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.

A few weeks before the 2022 midterm elections, President Biden promised that, if the Democrats maintained and expanded their majorities in both houses of Congress, he would push for legislation to enshrine the right to abortion in law.

In a speech to the Democratic National Committee on October 18, Biden stated his belief that “the [Supreme] Court got Roe right 50 years ago, and I believe that Congress should codify Roe [as law] once and for all.” The president also promised to veto any legislation that would restrict abortion rights in the event of a Republican midterm elections victory and Republican majorities in Congress.

Biden was referring to the Supreme Court’s decision this year in the case of Dobbs v. Jackson Women’s Health Organization, in which, by a 5–4 majority, it overturned the Court’s previous 1973 decision in the case of Roe v. Wade, which found a “constitutional” right to abortion. The Court’s decision in Dobbs eliminated the only federal legal protection of the right to abortion. As a result, several Republican Party-controlled state governments have passed legislation banning and criminalizing abortion at the state level. Most of these states have also made it a crime to travel to an adjacent state for the purpose of seeking an abortion.

In the same speech, Biden claimed, “Right now, we’re short a handful of votes” to pass legislation protecting abortion rights.

So, the president went on, “If you care about the right to choose, then you gotta vote. That’s why, in these midterm elections, it’s so critical to elect more [Democrats] to the U.S. Senate and more Democrats to keep control of the House of Representatives. And, folks, if we do that, here’s the promise I make to you and the American people: The first bill that I will send to the Congress will be to codify Roe v. Wade.”

President Biden made the extraordinary claim that, even with majorities in both houses of Congress, and the presidency — in other words, full control of the federal government — the Democrats were incapable of passing a law to protect the right to abortion and other reproductive rights.

In fact, the president’s claim was an outright lie!

The Democrats have held their current majorities in Congress and the presidency for two years; thus, the Democrats have had two years to pass legislation protecting the right to abortion and other reproductive rights. The Supreme Court’s Dobbs decision was handed down on June 24 of this year; thus, the Democrats have had almost five months to pass legislation protecting the civil rights that the Court eliminated. Even with the midterms behind us, the Democrats still have the power to pass any legislation whatsoever — right now. In fact, the new members of Congress will not be sworn in until January 2023, which means that the Democrats will remain in full control of the federal government for nearly two months.

When the Democrats throw their hands up and say, as Biden said, that they’re “short on votes,” the truth is that they are shamelessly lying to you. The truth is not that they can’t, but that they won’t.

But, why? The Democrats claim to be the party of reproductive rights, and the party of progressive civil rights in general. That’s how they’ve distinguished themselves from the GOP. If they can protect reproductive rights — if they can do so right now — then why won’t they?

It all comes down to the Democratic Party’s classic, tried-and-true electoral strategy: “carrot and stick.”

In the run-up to every election cycle, the Democrats dangle a “carrot” in front of certain sections of the U.S. electorate — in front of women, in front of LGBT people, in front of Black and other racially oppressed people, in front of disabled people, in front of migrants, in front of the working classes and the poor, and so on. The Democrats promise, “If you vote for us, we’ll protect your civil, political, and basic human rights. But you have to vote,” they insist, turning and pointing at the “stick” we know as the GOP, “or else your rights will be taken away.”

This election cycle was no different. For the Democrats, centering abortion rights in the midterm elections was a tactical move.

With the U.S. economy hurtling into another crisis and recession, and with inflation skyrocketing, many political commentators predicted that the GOP would sweep the midterm elections. But it seems that mainstream opinion underestimated the significance of reproductive rights and other civil rights, such as marriage equality, that are now threatened by an increasingly extreme-right GOP and a right-fascist Supreme Court. The consensus among mainstream political analysts is now that the issue of abortion rights played a singularly important role in the midterm elections, and that this single issue decided, in favor of the Democrats, many of this election cycle’s most hotly contested races.

Aside from the elections, ballot measures in several states concerned abortion. In every case, pro-choice proposals triumphed and anti-choice proposals were defeated.

Ballot measures enshrining the “right to reproductive freedom” in state constitutions were passed by majorities of voters in California (by 67%), Michigan (by 57%), and Vermont (by 77%). Conversely, a ballot measure in Kentucky, regarded as a thoroughly “red” state, would have amended that state’s constitution to stipulate that there is no right to an abortion. This backwards proposal was rejected by 52% of voters in Kentucky. A similar, but more convoluted, measure in Montana, which would have criminalized a wide range of abortion-inducing medical procedures, was rejected by 53% of voters in that state.

Clearly, the majority of U.S. citizens, even in many “red” states, support, in general, the right to abortion.

The Democrats understood this, and so, in standard Democrat fashion, they made the right to abortion the cornerstone of their midterm elections campaigns, with a few exceptions, across the country. In their messaging, the Democrats resorted to their tried-and-true “carrot and stick” strategy — making empty promises to pass legislation after the midterm elections, if the results were favorable, yet refusing to take action now, while they actually can. 

Now the 2022 midterm elections are mostly over, and the results, although incomplete, are clear: The Democrats no longer control Congress. The Republicans won a narrow majority in the House of Representatives, while the Democrats maintained a similarly narrow majority in the Senate.

What does this mean for Biden’s earlier promise to “codify Roe” in law?

At the president’s press conference on Monday, November 14, a reporter asked Biden, “What should Americans expect from Congress as it relates to abortion rights,” given the results of the midterm elections.

Biden replied, “I don’t think they can expect much of anything, other than we’re going to maintain our positions.” When further pressed, he added, “I don’t think there’s enough votes [in Congress] to codify [Roe], unless something happens unusual in the House [of Representatives]. I think we’re going to get very close in the House, but I don’t — I think it’s going to be very close, but I don’t think we’re going to make it.”

For two years (correctly speaking, for several decades) the Democrats have held hostage the right to abortion. This week, Biden made clear that his party won’t be giving up that valuable bargaining chip anytime soon — at the very least, not until the conclusion of the next election cycle, two years from now.

As we’ve said, the Democrats still have the power to pass legislation right now. In fact, the Democrats are currently in the process of passing legislation protecting the right to gay marriage in law. But they won’t do the same for reproductive rights.

Evidently, Biden’s plan is to keep the “carrot and stick” of reproductive rights available for use in 2024, when he’ll most likely face Donald Trump in another presidential election. We can be sure that the Democrats will yet again present themselves as the “party of women’s rights” in 2024. Until then, millions of women and transgender people will continue to needlessly suffer under a regime that cruelly denies us basic rights to essential, life-saving healthcare, and criminalizes us for seeking it.

The second distinguishing characteristic [of the state] is the institution of a public force which is no longer immediately identical with the people’s own organization of themselves as an armed power. This special public force is needed because a self-acting armed organization of the people has become impossible since their cleavage into classes… This public force exists in every state; it consists not merely of armed men, but also of material appendages, prisons and coercive institutions of all kinds, of which [pre-state] society knew nothing. It may be very insignificant, practically negligible, in societies with still undeveloped class antagonisms… [but] it becomes stronger in proportion as the class antagonisms within the state become sharper and as adjoining states grow larger and more populous.

[We] have often seen the capitalist class invoke the aid of the Supreme Court in order to save it some petty annoyance by declaring unconstitutional some so-called labor or other legislation. Now I can conceive of no reason why this same Supreme Court cannot be invoked to declare unconstitutional any or all electoral victories of the socialist party. Some may consider this farfetched. I do not consider it nearly as far-fetched as the decision which applied the antitrust laws solely to trade unions, or used the Inter-State Commerce Acts to prevent strikes upon railways.

—James Connolly, Irish Marxist and founding member of the IWW, Ballots, Bullets, or –?, 1909.

The Supreme Court of the United States grants nine rich, unelected, effectively unrecallable, Ivy-League-educated lawyers ultimate judicial power over the entire country, as well as the power to nullify laws it deems unconstitutional. Liberals uphold the Court, one of the most anti-democratic state institutions in the U.S., as the crown jewel of “American democracy” and the “rule of law.” Yet, for all their proclamations, this elitist, anti-democratic institution primarily exists to work out disputes among members of the ruling classes, not to uphold “liberty and justice.” 

In a nutshell, the Supreme Court, and the legal system it sits atop, works like this: The justices who sit on the Supreme Court, like all judges in the federal courts, are nominated by the president and approved by the Senate. The U.S. federal court system has jurisdiction over federal law, crimes and civil offenses that cross state lines, and, critically, the authority to interpret the U.S. Constitution. If an issue of constitutional magnitude arises in a state court, that issue can be argued in a federal district court. The parties involved can petition a decision of the district court, further elevating it to a federal circuit court. Lastly, circuit court decisions can be petitioned to the Supreme Court, whose decisions are theoretically final.

Liberals almost always frame these issues as disputes between differing political and legal “philosophies” on issues of human and civil rights — for instance, the right to healthcare, the right to be housed, the right to well-paying and safe employment, the right to own and carry a gun, the right to freedom of religion, the right to equal treatment before the law, and so on. Public discourse focuses almost exclusively on these rights, treating them as though they were real, tangible things that can be given and taken away, and that can take up three-dimensional space. (Think of the common refrain, “Your rights end where mine begin.”) In this discourse, the Supreme Court is upheld as an almost sacred institution, vested with a divine inspiration that empowers it to resolve questions about the very nature of justice; to decide, with a sort of historical finality, which rights are the most important, and which rights trump other rights; and to guide us toward the “ideal” social order, as laid out in the U.S. Constitution.

This is a fantasy version of the Supreme Court — the version taught in elementary schools to indoctrinate our children into the cult of the “American dream.” Regardless of whether the ruling-class propagandists who peddle this fantasy in the capitalist media and academia actually believe it, the fact remains that what they’re selling is a fantasy. The Supreme Court is not a forum for debate between competing legal “philosophies” (say, “conservative” versus “liberal”) of “rights,” “justice,” and the ideal social order, but rather a hall of compromises. The true purpose of the Supreme Court is the same as the purpose of all the machinery of the State generally: to maintain and reinforce the existing class dictatorship. To this end, the Court serves to mediate and resolve “normal” legal disputes that arise among members of the ruling class — in our time, the monopoly capitalists; in earlier centuries, the Northern merchants and new bourgeoisie and the Southern planter-aristocracy — in order to maintain a cordial “peace” among the rulers and to thereby avert potential crises. Furthermore, the Court serves to mediate and suppress the continuous struggle between the ruling class and the working and dispossessed classes. By handing down occasional “just” decisions, and by occasionally upholding basic human and civil rights, the Court effectuates legal compromises made to placate the masses, who would otherwise rise up in rage against all the daily injustices we face. In this way, the Court pacifies the class struggle, in order to protect the rule of the capitalists and the privileges of the other propertied classes (for example, small business owners and landlords) from the oppressed masses. On the other hand, when the struggle of the oppressed masses stagnates, withers, and fades, and the existing class dictatorship is no longer threatened, the Court is always ready to rescind every protection it previously granted, to “take away” even the most basic civil rights, and to reassert every legal privilege enjoyed by the capitalists. In sum, from time to time, the Supreme Court may “force” the ruling classes to make concessions to the poor and oppressed masses — but only when it has no other choice. On the other hand, as soon as the ruling classes get the opportunity, as soon as the masses no longer pose an immediate threat to the established order, the Court is there to snatch away every concession, and to enforce the absolute rule of our capitalist oppressors.

Historical Origins of the Court

The Supreme Court originated in the conflicting class interests that arose in the early U.S. settler-republic’s politics. The federal government was, by design, relatively weak when it was first created. The federal court system was likewise comically weak when it came to imposing rules on the newly created “states.” The planter-aristocrats, the ruling class in the U.S. South, whose entire lives and livelihoods were based on the regime of chattel slavery, and who therefore relied on a captive human workforce, favored recourse to their own state and local courts — courts staffed and bought by, and beholden to, the interests of the planter-aristocrat dictatorship.  

The newly forming Northern U.S. bourgeoisie had a fundamental interest in destroying the slave system and its mode of production. From the bourgeois perspective, slavery impeded the development of capitalism, the nascent mode of production. Wage-labor, the productive mode growing in the North, was far more productive. On average, wage labor was more skilled and much less deadly to the laborer. (Life expectancy for slaves, upon landing in the U.S., was, variously, only around seven years.) However, merchant and bourgeois capital had other reasons to push for a strong central court system: standardization of contracts and law, the evening-out of unequal legal regimes, so that shipping companies could anticipate the outcome of suits and so forth in all the regions they had to travel, and the establishment of rules concerning investment and exchange, among other things, were all powerful incentives.

As the drive to abolish the slave trade and the slave-plantation system gained traction, both internationally and in the early U.S., the Southern planters were increasingly driven into class conflict with the liberal-democratic merchants, lawyers, small artisans, and bankers of the “free state” North, where capitalism was beginning to develop, and where slavery was, slowly but surely, one reform at a time, nearing abolition. The planters were correct to anticipate their own demise. John Marshall, the first chief justice of the Supreme Court, was a wealthy Virginia lawyer whose interests were represented by the Federalists, the party of the Northern merchants and developing bourgeoisie. In the landmark 1803 decision, Marbury v. Madison, Marshall transformed the relatively weak Supreme Court into the ultimate instrument of class rule. The Marshall Court determined, in that decision, that the Supreme Court had the authority to rule on the constitutionality of every single action of every branch of the United States government. By this measure, the Supreme Court transformed itself from a relatively ordinary court of appeals, tasked with handling mundane matters like contract disputes, into a body of ultimate judicial power, which could unilaterally strike down laws, overturn elections, and unseat sitting Presidents.

Class Characteristics of the Justices

The U.S. Supreme Court is a panel of “justices” who serve for as long as they wish, accountable only to articles of impeachment in the United States Congress. Historically, these justices have been drawn exclusively from a small, insular social elite: they’ve all been graduates of top-ranking law schools, they’ve all held partnerships in top-earning law firms, and they are almost always elevated to the Supreme Court from existing positions in the federal court systems. Justices are appointed by the President, the nominal head of one of the two bourgeois political parties that are permitted to run candidates in the U.S. Empire; this is the only sense in which the Court could be called “democratic.” Finally, the justices are confirmed by the Senate, the upper house of Congress that has historically represented the interests of the most powerful capitalists (and, prior to that, planter-aristocrats) in each U.S. state.

All current justices sitting on the Supreme Court are, of course, lawyers, and all past justices have been lawyers. It behooves us, then, to look at the class forces at play in the practice of the law.

In 2019, the average cost of law school was just under $50,000 per year, and a juris doctor (professional law degree) course takes, at minimum, three years to complete. But, of course, Supreme Court justices don’t come from just any law schools. Since 1900, sixteen (16) justices have graduated from Harvard, eight (8) from Yale, and five (5) from Columbia University. That alone accounts for 51% of all justices who have been sworn in since 1900. The current court graduated from Yale (Alito, Kavanaugh, Sotomayor, and Thomas), Harvard (Jackson, Gorsuch, Kagan, and Roberts), and Notre Dame (Barrett).

Harvard Law School costs $70,430 per year — nearly six times the total income of someone at the federal poverty line. Columbia Law, meanwhile, costs $75,572 for each year. This puts the price tag on an Ivy League law degree at $211,290 for Harvard and $226,716 for Colombia. Furthermore, as a professional degree, JD programs require students to have earned a bachelor’s degree, which means that those who graduate from Harvard and Columbia must be able to afford to be removed from the workforce for 4 years and to pay for undergraduate before spending over two-hundred thousand dollars and three more years on law school. These costs increase every year, and the gap between “public” law schools and the “Ivy League” continues to widen. Even after law students graduate, most take additional time to prepare for the bar examination, which certifies them to practice law in a given jurisdiction. 

Many of these schools also reserve so-called “legacy” seats. “Legacies” are students, typically at an elite university, whose parents also attended the school, and often stand out among its graduates as wealthy private donors. The Wall Street Journal calculated that “[sons] and daughters of graduates make up 10% to 15% of students at most Ivy League schools,” and it is common knowledge that even the most elite universities frequently overlook subpar grades and standardized test scores if an applicant can fill a “legacy” seat.

In sum, the vast majority of people in the U.S. could never hope to afford law school, let alone a degree from an elite university. This means that all justices on the Supreme Court, as well as most judges and attorneys active within the U.S. judicial system, are inevitably drawn from wealthy backgrounds — i.e., from the property-owning and ruling classes.

But we have only discussed the class background of law students and graduates. What about practicing attorneys?

Most lawyers are petit-bourgeois — that is, they both work upon and substantially own their instruments and conditions of production: the licensing, schooling requirements, examinations, and bar admissions. These are a holdover from the old medieval guild system, and they ensure that every lawyer who has been licensed to practice law has the capacity to immediately raise capital in the form of a loan, and to strike out on their own and open a law firm. When working in a firm, a lawyer expects that their own work will be rewarded with equity in the firm (“partnership”) and that they will then be given a share in the profits generated by all the other lawyers. Those lawyers who do become partners are transformed fully into members of the bourgeois capitalist class: owners of the licenses, premises, computers, social connections, and so forth which make up the means of production of legal services.

It should be no surprise that those lawyers who make it all the way through the many, increasingly restrictive tests and requirements, have come up with the money to go to college, to law school, used their personal relationships and worked as a clerk for a judge, become a judge themselves and received judicial salary for working as an agent of the bourgeois state, and at last been selected by a sitting president and cleared through the confirmation proceedings in the Senate, those who become Supreme Court justices have become fully and completely permeated with petit-bourgeois and bourgeois ideology; they have become themselves legal agents of a class or fractional class-interest. They serve, in other words, a class function.

The Legal Function of the Court

Usually, only cases which contain nominally unresolved legal questions are heard by the Supreme Court. In order to appeal the decisions of a lower court, that court must grant certiorari (certification) for the case to advance. Aggrieved parties may appeal to the next higher court if “cert” is not granted at the lower level, or if the court of appeals rules against them. However, the Supreme Court chooses not to take most of the cases which are presented to it. The Supreme Court Justices purposefully accept cert only on cases where there is confusion in lower courts (because Circuit Courts responsible for different parts of the U.S. have ruled differently on the same issue) or where they believe they can make a landmark change that will affect the entire U.S. socio-political system.

The current Supreme Court is dominated by a right-fascist supermajority — a situation that will most likely last for decades to come. In effect, this means that this supermajority has the power to reinterpret virtually every area of U.S. law. It has already taken full advantage of its position: throughout the U.S. court system, from the state to the federal level, the right-fascist camp in American politics is purposefully initiating challenges to long-held legal precedents, including past Supreme Court decisions, that uphold basic civil rights, with the intention of having the current Court eliminate these protections.

For instance, although the Supreme Court’s 1973 ruling in Roe v. Wade established that state laws criminalizing abortion prior to the end of the first trimester (in that instance, a Texas law) are unconstitutional, in September of 2021, the state of Texas enacted a new statute penalizing abortion after six weeks of pregnancy. The Texas legislature enacted this law knowing it would be challenged. This year, the super-right Supreme Court overturned Roe altogether in a decision that lays the legal groundwork for attacking the “rights” to contraception, legal gay sex, “inter-racial” marriage, and gay marriage (Griswold v. Connecticut, Lawrence v. Texas, Loving v. Virginia, and Obergefell v. Hodges, respectively).

Thus, under the current super-right composition of the court, many cases that would otherwise have been decided according to the more mainstream liberal consensus that has prevailed in the country since the 1930s will now never be heard. Other challenges to prior, more liberal, Supreme Court rulings are being set up to provide the super-majority with the cases it requires in order to overrule prior decisions of the court, and therefore revoke many of the so-called “rights” that had been recognized by the Supreme Court in the 60s and 70s in response to intensifications of the class struggle in the middle of the last century.

When the Supreme Court makes a decision it becomes the binding law of the land. Federal courts must follow the rulings of the Supreme Court. However, there is considerable leeway in the way in which federal courts interpret Supreme Court rulings and the pay of many a lawyer hinges on parsing and splitting precise language, determining what is a “holding,” that is binding and therefore controlling, and what is mere “dicta,” essentially extra words that don’t have any legal force. This is of particular moment when the Supreme Court interprets the U.S. constitution, since that document is considered to guarantee the bedrock minimum rights and how they must be applied.

The nine justices of the Supreme Court decide cases by reaching a common consensus about the outcome. They gather together and talk about what they agree on and what they disagree on. They consult one another and construct a set of minimum points of agreement. These are drafted into what is called a majority opinion. Those justices who agree with the majority may also write concurrences, which expand upon the majority points in ways that were not agreed-upon by all the justices. The justices who disagree may write dissents.

This means that the position which garners the most “votes” among the justices is the one which prevails. The super-majority of right fascists currently on the court guarantees that they will collectively decide the outcome of any and all cases that come before it. In the past, this has meant that justices have sometimes sat on the court for many years before becoming active as their power-bloc changes with the death or retirement of the elder justices.

It is worth noting the ages of the currently serving justices and their political affiliations:

• Clarence Thomas, 73 – generally ultra-right;
• Samuel Alito, 72 – rightist;
• John Roberts, 67 – rightist;
• Sonia Sotomayor, 67 – progressive left;
• Elena Kagan, 61 – progressive left;
• Brett Kavanaugh, 57 – ultra-rightist;
• Neil Gorsuch, 54 – ultra-rightist;
• Ketanji Jackson, 51 – progressive left;
• Amy Barrett, 50 – ultra-rightist.

The eldest justices are two rightists (Alito, Roberts), an ultra-rightist (Thomas), and two “progressives” (Sotomayor, Kagan). The outgoing center-leftist Stephen Breyer retired at the age of 83 and the average age that a justice leaves the court is 81. The current court makeup has presumably at least a decade before the next judges retire (Thomas and Alito, 73 and 72 respectively). At 6 rightists to 3 progressives, even the departure of Thomas and Alito, given that they’re replaced by progressives or even moderates (not a guarantee in any world), would not significantly rebalance the court, for it would leave the count at 4-5. Such court compositions generally grant the most power to the justices with the most moderate, centrist views, as they become a decisive “swing vote.” The most “centrist” of the current court are, by a long shot, John Roberts and Neil Gorsuch — they represent the leftmost flank of the ultra-right bloc.

The Class Function of the Court

Now, to the question: what is the class function of the court? How does it manifest?  What are its specific features? The capitalist media and education system is not equipped to answer these questions; capitalist education lacks the basic analytical tools and framework to make sense of how the court behaves, and instead, as we mentioned above, frames every issue as a “battle” between various rights. The closest that bourgeois-capitalist scholars have come to an actual understanding of how and why the court system functions is the often-derided school of legal analysis known as “legal realism” which refuses to take at face value the long documents issued by the justices called “decisions” and instead seeks to understand why the decision was made, ignoring the high-flown legal language about precedent, Anglo-American common law, and so on. Still, even legal realism often grounds itself in individual psychoanalysis of the judge, or at most in the ideological issues of a movement.

As we have seen, the Supreme Court is a class-captured instrument. It should come as no surprise to Marxists that it is also a tool of class rule. It fulfills several functions:

1. Adjudicating inter-bourgeois disputes (contract law, election law);
2. Presenting a shield of legitimacy to disputes between the bourgeoisie and other classes (contract law, tort law) or bringing the most excessive and open abuses of the bourgeoisie to heel (contract law, tort law, criminal law);
3. Protection of private property, productive relations, class barriers, and cisheteronormative patriarchal white supremacy (criminal law);
4. Organizing retreats in the class struggle by recognizing changes being forced by the working class (any expansion of proletarian “rights”); and,
5. Pressing home victories in the class struggle by rolling back rights, attacking the organizational capacity of the working classes, and permitting intensification of exploitation.

Because the court has been captured by right-fascist interests, its most visible decisions of late fall under the fifth and first criteria, that is, the intensification of fascism and capitalist exploitation. The current Supreme Court is attacking the left-fascist faction of the bourgeoisie by degrading the powers and authority of the federal government and elevating state governments which are easier to capture and less subject to the stabilizing influence of the entire U.S. bourgeoisie, and at the same time by attacking one of the perceived power-bases of the left-fascist alliance: the U.S. working classes.

At the same time, the court attacks the working classes, particularly the racialized nationally oppressed groups, and permits the monopolist bourgeoisie to intensify their exploitation of U.S. workers. This is an aggressive strategy in the new COVID-wracked world where unionization drives and the social murder of one million U.S. workers and counting have given labor a new power. The court is attempting to counteract this power even as U.S. prominence abroad slips, its neocolonies suffer invasions, its allies begin to reconsider their priorities, and the market wobbles on the verge of a worldwide depression.

I. Inter-Bourgeois Disputes

The court system, like the bourgeois state itself, serves a dual purpose. The first and most basic is suppression of the working classes by the ruling class. The second, however, is to sort out its own affairs without disturbing its security over the other classes. Should fighting between individuals or factions within the capitalist class get out of hand, become too violent, vigorous, or open, it is possible for the state apparatus to break down or for the laboring classes to take advantage of the opening to overthrow their rulers.

When the rich fight among themselves, they normally rely on the courts. After all, the courts were originally fashioned to settle their disputes over property rights, contracts, and so on. In the European middle ages, petty feudal lords sometimes waged small-scale wars against each other, but this only served to weaken either lord and, critically, to sow discontent among their serfs, free subjects, and vassals; a much better option for the petty lords was to appeal to regional Church authorities to settle their disputes on amicable terms, above the heads of the laboring classes. In our modern capitalist society, where such petty warfare is impractical, the bourgeoisie has various other extralegal means of settling disputes among themselves: committing industrial espionage, employing the mob to intimidate or murder their opponents, bribing police officials, etc., but all of these things tend to destabilize the established order, to invoke public outrage, and consequently to loosen bourgeois control over the workers. Thus, the legal system — the courts, as well as the bought-and-paid-for legislature — is, from the bourgeois perspective, the preferable way to handle “normal” day-to-day disputes between competing capitalists on more or less amicable terms.

Importantly, the courts are also tasked with overseeing the manner in which elections are run. Politicians in the U.S. serve the interests of the bourgeoisie and the other propertied classes (small business owners, landlords, etc.): Local and municipal politicians serve local interests, state politicians serve regional interests, and federal politicians serve the interests of the monopoly capitalists, who rule the entire U.S. Empire. But among the dominant classes in a given locality or region, differing interests exist, leading to conflicts. Maintaining a balance in local and state governments between the sometimes competing interests of the various dominant classes is yet another way the courts serve as mediators in the existing class dictatorship. At the federal level, in its current iteration, the right-fascist Supreme Court and right-fascist federal courts have gradually shifted the balance of power in favor of the right-fascist bourgeois party, the Republican Party, through legal maneuvering. For example, in the Black-plurality region of the south commonly called the Black Belt, the courts have helped entrenched GOP dominance by repealing the Voting Rights Act and approving gerrymandered districts designed to severely curb the Black vote. This exceptionally fertile area is where the highest concentration of slave plantations were located in the United States, and remains to this day as the region where the Black population of the U.S. remains most concentrated.

II. Legitimizing Class Rule

The courts also legitimize the class rule of the bourgeoisie. First and foremost, by acting as an “independent” agent that pretends to be above the petty concerns of financiers and tycoons, the courts can give the appearance that it is not, in fact, the ruling capitalist class that is waging a war on the poor, on the Black, Indigenous, Chicanx, Puerto Rican, and other nations; it is not the capitalists who are doing the oppressing but the “legal system.” Capitalist-aligned legal reformers can then get on the rostrum and give heartfelt speeches about “criminal justice reform” to further confuse the issue.

When exploitation is too intolerably naked, or when extreme injustices arise, the court system gives an avenue for those from other classes to attempt to vent their anger. Tort cases can be brought against the businessman in his Mercedes who drunkenly damages property; in theory, it is possible to bring a lawsuit against an employer who commits wage theft. Although it is more often than not the case that the party with the larger pocketbook wins the court case, the court system permits the capitalists to pretend that a general sense of “justice” prevails in the U.S.

Open and flagrant violations of the social compact and the law are punished by offering up sacrificial members of the ruling class — take, for example, Jeffrey Epstein and Ghislaine Maxwell, who procured children for abuse by the members of the ruling class. None of their clients have been indicted, and it is likely none will. They have become sacrifices for the sins of the ruling class.

To a certain extent, the courts also appear as a kind of public service to the other classes, allowing petit-bourgeois businesspeople, craftspeople, smallholders, and even laborers, to bring suits against one another before what purports to be a neutral arbiter.

III. Protecting Property and Property Relations

The primary purpose of the criminal law system is to protect the social, economic, and property relations of the ruling class. It works in conjunction with the police to act as the enforcement arm of the state. Property crimes account for roughly 7/8ths of all prosecutions in the United States in 2019 according to the F.B.I.’s own statistics — 6,925,776 property crime offenses against 1,203,808 violent offenses. This number is even higher when one takes into account that some of these “violent offenses” also constitute the policing of property — for example, charges that arise when someone is physically stopped by loss prevention, or for attempting to prevent police from slamming their head into the curb. Some of these violent crimes result from the enforcing of social relations, and so on.

Without the power of the police and the court to prevent the working class from rising up and taking what they need to live, without the threat of hoses, rubber bullets, police tanks, live ammunition, police terror, and the accompanying complex of courts and prisons that then levy punishment, incarceration, and judicial slavery, the mansions of the rich would soon be torn down and their wealth given to those they kept it from.

For instance, the Supreme Court, in its 1896 decision Plessy v. Ferguson defended the “right” of states (Louisiana in Plessy) to establish laws that required “equal, but separate” racial segregation to protect the property interest and social relation of whiteness.

IV. Making Strategic Retreats and Class Concessions

Brown v. Board of Education, the Supreme Court case which ruled that racial segregation in public school was unconstitutional, was decided in 1954. In 1950, Justice William O. Douglas traveled to India and the first question he was asked was “Why does America tolerate the lynching of Negros?” In 1952, the Regional Council of Negro Leadership (“RCNL”) led a successful boycott of gas stations in Mississippi that refused to provide bathrooms for Black persons. The RCNL then led campaigns against the state highway patrol and a segregated Nashville bank. By 1953, Soviet media began a full-on assault against this racism and colorism — it has come down to us as the alleged (but not actual) tu quoque fallacy “and you are lynching Negroes.”

When the imperialists are flush with plunder, when the imperialist wars were at their height, when the organized power of the U.S. working class threatens either through its own internal strength or the borrowed strength of lands where the revolution triumphed, then U.S. Supreme Court is prepared to give up concessions, sometimes quite large; to allay the intensity of class struggle, it extends crumbs to the working classes, oppressed genders, and the nationally oppressed. These were the conditions when the Supreme Court granted the “rights” to interracial marriage, to contraception and birth control, to abortion, to gender equality, to equal treatment before the law.

Those conditions will likely never return. Now, the U.S. empire is contracting. The rate of profit continues to fall. The only way such concessions will be won again is in the teeth of organized, working class power — the kind that threatens the homes of senators and the existence of the U.S. state itself.

V. Engaging in Class Warfare

And what does the court do when the rate of profit is falling, when the organized, class-conscious members of the ruling class need to intensify exploitation? We have witnessed it. The Supreme Court acts as both the sword and shield of capital. Now, as the U.S. monopolists falter on the world stage and at home, besieged by the contradictions which cannot be suppressed, the most reactionary element rises to the fore and demands outright domination and rule. So, the court strips away all protections, little by little, and subjects the working classes to the unmasked brutality of the U.S. terror-dictatorship; the same brutality that has been, for nearly two centuries, visited on other nations now returns home, a thin and wretched vulture, to pick at the domestic carcass.

The U.S. Supreme Court is not the last, best, hope of the left-leaning bourgeoisie or their dying class-collaborationist alliance. It is a lance that has been tempered and fire-hardened by fascists to drive into the heart of the working class.