While the entire world burns, overrun with the forest fires and smog of our ongoing capitalist-manufactured ecological catastrophe and economic crisis, the nine highest judges in the country have spent this summer raining their disdain for the working and oppressed people of the U.S. Empire down on our heads. The U.S. ruling class is at war, not only with the Russian Federation over Ukraine (and they are only too happy to profit from that carnage) but with itself. Over what? The right-wing of U.S. political bureaucracy, housed in the Republican Party, and especially its extreme MAGA wing, wish to accelerate the rise of fascism, while the left-wing, housed in the Democratic Party, wish to decelerate this rise, to consolidate the Trump administration’s expansion of fascism while returning political stability to the country. The left-wing of U.S. fascism remembers with fear June 2020 — an empire in flames — and is desperate to stave off the next rebellion; the right-wing of U.S. fascism welcomes it, and is doing everything in its power to push the oppressed masses of the U.S. Empire to the brink.
Having securely captured one branch of the U.S. federal government, the judiciary, headed by the Supreme Court, and having gained partial hegemony in another, Congress, the extreme-right fascists are intensifying their crusade for the absolute, unrestrained tyranny of capital over labor. At present, these extreme-right fascists don’t even conceive of the working class, of us, as a political adversary; we have not yet succeeded in organizing ourselves as a class, into a political party and a political force. Instead, they look to us as their blood bank, a reserve of coal and kindling with which they plan to feed the furnaces of fascist barbarism.
Our American Hitlerites have shifted the front of their war. They are no longer reliant merely on mobilizing the dissatisfaction of petit-bourgeois shop owners, professionals, and reactionary intellectuals to mount frontal assaults on the halls of bourgeois power as they did during Trump’s January 6, 2021 putsch. Rather, they are marshaling their energy and drawing up their strength through legal channels. They have chosen to make use of the most conservative element of the U.S. imperial state: the Supreme Court. These far-right elements have been waging an increasingly open war on their more moderate siblings in office since the early 1990s; with their firm and unshakeable grip on the Supreme Court, they have advanced their agenda out of the board rooms where it was hatched and into the long-lasting world of judicial decision. The Supreme Court has been transformed into a front of attack from the fascist reaction; their strategy has transformed it from merely the last line of defense of the capitalist and into the front line of a fascist war.
This summer, their agents on the Supreme Court of the United States have rolled back the clocks; through that particular sorcery of legal argument, they have undone a century of working class victories and taken us back through the mists of time. This fascist-right Supreme Court has marked out its target clearly: the decisions of the Warren Court, that period of chief justice Warren’s tenure from 1953–1969, which stand as the high-water mark for legal victories in the Civil Rights movement.
The Federalists
The “Federalist Society for Law and Public Policy Studies” is a far-right lawyers guild founded in 1982 by Yale, Harvard, and University of Chicago law students. They were a fascistic reaction to the proliferation of progressive student-activist movements in the late 1960s and mid-1970s; they appeared as a fascistic mirror, of sorts, to the earlier socialist, anti-racist, and anti-war Students for a New Democratic Society. Their organizing conference was funded by the Institute for Educational Affairs — a fairly transparent CIA cut-out run by Irving Kristol, an anti-Communist ex-CIA agent, and William E. Simon, Gerald Ford’s Secretary of the Treasury from 1974–77. After that conference, additional funds poured in from the Olin Foundation, a known CIA cut-out that laundered money for Langley from 1958-66. The infamous Koch Brothers, through their various political and “philanthropic” foundations, have been major donors; even Google and Chevron have pitched in. Money for fascistic projects comes hand over fist. By 2017, the Federalists boasted $20 million in annual revenues. They were shepherded in their early phase by none other than the arch-reactionary villain, justice Antonin Scalia. They drew ideological and tactical support from none other than Robert Bork, whose confirmation as a Supreme Court justice was scuttled by the U.S. Congress when it determined that his reactionary views were too far outside the mainstream, even for the reactionary wing of the Democratic party. In 1963 Bork, the dark luminary of the fascist reaction, wrote an article in the New Republic arguing against the 1964 Civil Rights Act, on the grounds that outlawing racial discrimination in public accommodations would infringe the rights of business owners.
So who are these Federalists? Holding the membership of some 70,000 practicing attorneys in the U.S. and six of the nine serving Supreme Court justices, they are sometimes described as the central clearing house through which young reactionary-conservative lawyers must pass in order to enter conservative politics. Reporter Amanda Hollis-Brusky describes them as “the de facto gatekeeper for right-of-center lawyers aspiring to government jobs and federal judgeships under Republican presidents.”
U.S. senator Sheldon Whitehouse, in a 2019 speech, warned that “there are three Federalist Societies.” The first is “for the most part, a debating society” that exists on law school campuses. The second is the “parent organization of the campus debating society — a sort of highbrow think tank seeking to further conservative and libertarian judicial principles.” The third is “the nerve center for a complicated apparatus that does not care much about conservative principles like judicial restraint, or originalism, or textualism. This Federalist Society is the vehicle for powerful interests, which seek not to simply ‘reorder’ the judiciary, but to acquire control of the judiciary to benefit their interests.”
What Whitehouse has described is the worst nightmare of the “left wing” of the U.S. political class, constituted in the “mainstream” center of the Democratic Party: a political organization, in this case a guild, organized not for the interests of the ruling monopoly capitalists generally, as against the working class — what the Supreme Court has always been — but as a partisan tool wielded by one faction of the U.S. political bureaucracy against the other. Democrats, being loyal representatives of the ruling class, have long systematically refused to cannibalize the U.S. state machinery toward partisan aims. That’s what Biden means when he says he fears “politicizing” the Supreme Court.
The Federalist Society is the legal arm of the most reactionary elements of the ruling class. They have organized for forty years to place their ideological adherents into positions of power. Their goal is to lift all regulations on business, to return the country to its pre-1960, pre-Civil Rights Movement, Jim Crow apartheid state, to enshrine the most violently reactionary section of the monopolists as the unchallengeable despots of the U.S. Empire. No more veils, no more screens, no more pretending to care about “civil rights” — the absolute domination of big businesses in every aspect of human endeavor.
Their target may be further back even than the 1950s. The Federalists routinely cite the 1905 case Lochner v. New York, 198 U.S. 45, as their standard of judicial reasoning. What was Lochner? A case in which the state of New York charged the owner of a bakery with violating the Bakeshop Act, which made it illegal to have employees work days of longer than ten hours and weeks longer than sixty hours. The Supreme Court of the United States held that this law violated the “freedom to contract” and established an unrivaled dominion of business interests until 1937, when F.D.R. “disciplined” the Supreme Court with his court-packing plan, introduced into the Congress on March 10, 1937. On March 29, 1937, under massive public scrutiny and the fear that the president would add justices to overturn other rulings, it overruled Lochner in West Coast Hotel Co. v. Parrish. While the Lochner ruling remained in effect, “freedom to contract” meant that labor was continuously repressed and state power could not be invoked. This kind of rollback of labor laws may very well be in the future of the current Federalist court.
The Initial Assault: Overturning Roe
The Federalists have been patiently building their forces over the last four decades, slowly but surely capturing and cementing their footholds in the upper levels of the federal judiciary, in preparation for an opportunity to wage an all-out war of conquest. The influx of extreme-right fascist judges appointed during the Trump presidency furnished this opportunity. Federalist assault began at last on June 24, 2022, fully forty years after the Federalist organizing conference. That was the date of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 597 U.S. (2022), negating the court’s 1973 ruling in Roe v. Wade, 410 U.S. 113, that protected a pregnant person’s right to an abortion, and its ruling in the 1992 case Planned Parenthood v. Casey, 505 U.S. 833, which reaffirmed and expanded reproductive rights.
The Roe decision was not an act of the Supreme Court’s spontaneous good will. It came only after years of mobilization by political organizations like the Jane Collective, a Chicago-based women’s liberation movement organization that operated an underground abortion clinic when the procedure remained illegal in Illinois, the Boston Women’s Abortion Coalition, and the Women’s National Abortion Action Coalition. Roe followed the combined and sustained efforts of a cross-class alliance hammering at the abortion laws, raising the public’s consciousness, and agitating for definite political demands.
In the 1960s and 1970s, the Women’s Liberation movement exerted a powerful gravity that was able to break apart the allegiance of many petit-bourgeois and bourgeois women to their class. They saw the suffering of their siblings, and they joined groups like the Jane Collective to help alleviate it. It was this heroic, historic effort that brought about Roe. As long as any woman is oppressed as a woman — an oppression which includes the oppression of trans women as women — every woman must choose whether she stands with her sisters or with her patriarchal oppressors.
The Federalists on the Supreme Court have made their position clear. They stand with the oppressors of women, workers, and especially working-class women everywhere. They stand for their class, and for the power of bourgeois patriarchs to determine who can control their bodies, and when. Bourgeois men will still pressure their wives, girlfriends, and daughters into abortions, and haute bourgeois pregnant people will still have abortions available to them by virtue of their wealth and status. Dobbs is a death-blow not to those pregnant people of New York or D.C. high society, but to the poor, particularly those working-class people in the colonially oppressed nationalities.
The Reactionary Summer of 2023
The Federalist charge has accelerated into a fascist blitzkrieg. This year, the Supreme Court’s attacks have come so fast that one barely has time to absorb one before bracing for the next.
In Biden v. Nebraska, the court struck down the student loan forgiveness program instituted by President Biden. This was anticipated by the Biden administration in advance — the White House never intended to forgive student debt, because it is one of the most important levers keeping young skilled professionals working at extortionate rates and propping up the failing economy. This was the desired outcome by both wings of the political class.
In Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, the Supreme Court struck down affirmative action, stating that admission policies in the country’s prestigious universities must be “race neutral,” thus safeguarding the old boys’ network of affluent whites — today joined increasingly by Asians — that still dominates Harvard, Yale, and the rest of the Ivy League against dissolution by Affirmative Action programs are designed to extend educational opportunities to Black and other racially oppressed working-poor students.
In Jones v. Hendrix, the court held that actually innocent people cannot challenge their convictions if they have already tried to do so once before, thanks to Bill Clinton’s “war on terror,” “tough on crime” Antiterrorism and Effective Death Penalty Act of 1996.
In Haaland v. Brackeen, as we at the Clarion have already demonstrated, the court superficially ruled in favor of the Indian Child Welfare Act — but only so it could turn around and use that ruling as a pretext for stripping Indigenous nations of the last vestiges of political autonomy, the last pretenses sovereignty. The court did exactly that in Arizona v. Navajo Nation, decided only a few days later.
In Counterman v. Colorado, the court held that, in order to convict someone of “threatening,” the state must prove that the defendant had a real subjective knowledge that the statement was threatening, a ruling designed to protect white supremacists.
In Glacier Northwest v. Int’l Brotherhood of Teamsters, the court ruled, in opposition to a century of precedent in labor law, that a corporation can bring a tort claim — that is, can sue for loss of business or other damages — against a striking union. This, of course, is a direct blow to the labor movement, which has been building steam and gaining traction especially over the past three years. It is likely that UPS has been emboldened by this ruling to shut down ongoing negotiations with the Teamsters union.
Finally, in 303 Creative LLC v. Elenis, the Supreme Court ignored its own requirement for “standing” to address an imaginary harm against a website design business run by a right-wing ideologue who employed Federalist society lawyers in creating the perfect “test case” to produce their desired ruling. Perfect, that is, except that 303 Creative and its Federalist backers had to create, from whole-cloth, the “request” for a wedding website designed for a gay couple so they could claim harm. As a result of this manufactured controversy, the court ruled that a business has the right to discriminate against protected categories (race, gender, sexual orientation, etc.) of people, doubling down on the 2018 Masterpiece Cakeshop v. Colorado Civil Rights Commission ruling. Atop the highest pulpit of legal authority in the country, the extreme-right wing of fascism proclaimed that gay couples can be refused service point-blank for the “crime” of being gay.
What’s Next?
To comprehend the Federalist strategy, we must see the forest, and not merely its trees. In fact, confining ourselves solely to the actions of the Supreme Court or its extreme-right Federalist ideologues will also cause us to miss the mark.
Securities and finance were the top sector providing the trackable donations for Hillary Clinton’s 2016 campaign. They were the second top donating sector to Trump in that same 2016 campaign. In 2020, they were Trump’s third top donating sector. For Biden in 2020, they were his top donating sector. The big monopolists invest in both parties, and are the decisive political power in the country. The largest single lobbyist is the U.S. Chamber of Commerce (USCC), a private non-profit that has one goal only: to advance the interests of U.S. business against the workers. It does this to the tune of some $20 billion dollars in lobbying funds each year, which shift from candidate to candidate depending on whom the majority of the capitalists, counted by the capital they own, favor.
What does all this have to do with the Supreme Court? Well, firstly, the USCC is stridently anti-union and anti-labor. It has been campaigning against the Protecting the Right to Organize Act (PRO Act) for two years, and it can consider the Glacier ruling to be a major victory for its capitalist constituents over the organized working people.
While the Republican plan is to conduct a continual frontal assault on the working class, battering down the rights that have been won by the blood of the people, the Democrats have laid down cover for them. Biden, for instance, loudly advocated for the PRO Act when it was convenient for him, but has since silently abandoned any attempt to have it passed. The 2024 elections are fast approaching, and the Democrats cannot afford to alienate their donors. This back-footedness requires them either to dissemble and lie to the working people, or else to chart the most conservative possible tack, all the while promising progress some day after their backing is secured. Because progress is against the needs, the very essence, of the capitalist class, this day will never, can never, come. The Democrats will never be “secure” enough to “give” rights to the people — which is why our rights have always been won by struggle, as concessions wrung from “our”capitalist government, and never handed down by any political party out of good will.
In its Dobbs decision, the extreme-right Supreme Court took aim at a number of past civil rights rulings: Loving v. Virginia (protecting the right to inter-racial marriages), Obergefell v. Hodges (protecting the right to same-sex marriage), Lawrence v. Texas (protecting the right to same-sex sexual relations), and Griswold v. Connecticut (protecting the right to birth control access). It would be overly simplistic to explain the present Federalist assault in terms of a cost-benefit analysis to the reproduction of capital. Repression is not necessarily profitable. There are, instead, powerful ideological factors at work: white supremacy, misogyny, homophobia, etc.
The present Supreme Court has taken aim at the autonomy — and last vestiges of recognized sovereignty — of American Indian nations and the right for workers to organize in unions. We can expect capitalists to encroach even further on reservation territories, e.g., the Oceti Sakowin lands in Pine Ridge, where the capitalists, using the force of the federal U.S. government, have been aggressively trying to secure uranium. We can also expect attacks on organized labor: the combined WGA/SAG-AFTRA strike, the Teamsters strike at UPS, the rolling strikes at unionized Starbucks stores, and the attempts at organizing the Bessemer, Alabama Amazon distribution center are all subject to repression.
Our civil rights have been forcibly wrested from our capitalist rulers through decades of struggle. Labor rights were not bequeathed to us as a gift from Congress or the Supreme Court, but were seized at gunpoint at Blair Mountain. From antebellum campaigns to the bricks thrown at Stonewall to the great awakening of the public to LGBT issues in the last decade, rights have been clawed from our oppressors by abolitionists, suffragists, and queer militants, — not through the court. Abortion rights were secured by Janes working in the underground, not invented by “justices” sitting upon the bench.
The Supreme Court of the United States has never once been ahead of the masses in granting or protecting rights. It never will be. It is, by design, a reactionary institution; its purpose is to pull the masses back, to hold us down, to suppress our struggle whenever it can, and to grant the occasional civil rights concession only when it must. In this respect, the court’s ongoing fascist blitzkrieg, the reactionary crusade of regression in which it is turning the dial of history backward, case by case, ruling by ruling, decades at a time, is not an aberration or a malfunction, but Constitutional clockwork.
