A chill went was sent down the spines of millions of Americans, women in particular, when Anthony Kennedy announced his resignation from the Supreme Court in June. This acute fear is due to the prospect of another seat on the Supreme Court being handed to a Trump appointee. Kennedy was seen as the “swing vote” on the Court, and the appointment of a conservative Justice in his stead would more firmly push the Court further to the right. In particular it would represent a direct threat to set back women’s rights given Trump’s deal with the Christian Right to dismantle Roe v. Wade.
Last month Donald Trump announced his pick to replace Kennedy: Federal Judge Brett Kavanaugh. Kavanaugh’s conservative record is entirely unsurprising and, if he is appointed, he threatens to take the Court even further to the right. While Kavanaugh poses a substantial threat to Roe v. Wade specifically, he also represents the general threat of more anti-LGBTQ, anti-labor, and pro-corporate decisions being taken in the coming years. While there is a laundry list of decisions Kavanaugh has taken as a judge that have been bad for working and oppressed people, he has recently come under fire for a particularly brutal position he took in 2014.
That year he wrote the dissenting opinion in a case involving the death of a SeaWorld employee who was drowned on the job. In his dissent he claims that responsibility for her on-the-job death did not lie with her employer but rather with her for not assuming that the job carried a life-threatening risk. If taken to its logical conclusion, Kavanaugh’s dissent means that bosses bear absolutely no responsibility for conditions faced by their employees.
Kavanaugh’s record is clearly abysmal and he poses a real threat. The right wing, including the Federalist Society, have been developing of reliable right wing judges for years. This is how Trump got his famous list of possible Supreme Court appointees. However we should be clear that the Court before Kavanaugh was far from a beacon of progressivism. Even with Kennedy, the Court has taken a whole series of reactionary decisions in recent years. The 2009 Citizens United decision, in which Kennedy wrote the majority opinion, gave corporations the right to contribute endless cash to political campaigns. Recently the Court ruled that a cake shop owner in Colorado had the right to refuse service to a same-sex couple, a decision that was supported by Obama appointee Elena Kagan. And just this year the Court handed down a major blow to public sector unions in the Janus decision.
But this in no way diminishes the point that Kavanaugh on the Court represents a ramping up of conservatism and his appointment should be fought to the end. With 49 Senators, the Democrats need to find only one dissenting Republican to block Kavanaugh, yet despite Chuck Schumer’s stated intent of fighting this nomination “with everything I’ve got,” he appears to already be backing down.
What Would it Take to Defeat Kavanaugh?
While the Democratic Party leadership has been widely critical of Kavanaugh, this has not translated into any real struggle to prevent his appointment. They initially planned to boycott individual meetings with the appointee yet are now backtracking and intend to meet with him later this month. This is just one example of their thoroughly toothless approach. With a handful of Democratic Senators up for re-election in states that went handily to Trump, they fear that voting against Kavanaugh’s appointment would cost them seats.
The strategy of the party leadership in the face of this has been to encourage these Democrats to stay quiet as long as possible. This approach is based on the assumption that only “centrist” Democrats can win in “red” states.. Yet Bernie Sanders’ crushed Hillary Clinton in “red states” like West Virginia in the 2016 primary. In Missouri, where Claire McCaskill faces a tough re-election, voters recently rejected rejected an anti-labor “right to work” law by a 2 to 1 margin. If the Democrats were to show real leadership and take bold steps to fight the appointment of such a starkly anti-labor, anti-woman nominee — its possible they would be better positioned to win re-election in states that went to Trump.
The Democrats should link up with major unions and women’s rights organizations and call for demonstrations against Kavanaugh’s appointment. One positive indication in the fight to prevent Kavanaugh’s appointment is the 10-city “Rise Up for Roe” tour organized by Planned Parenthood and NARAL Pro-Choice. This is a good first step and these organizations should build on this by organizing demonstrations out of each meeting they host. The Women’s March could join them in this and call for marches and rallies in major cities across the country. They should aim to organize high profile occupations of the offices of key Senators who have not yet committed to voting against the appointment.
Only by ramping up mass resistance will there be any chance of defeating Kavanaugh’s appointment. However until this point there has not been a serious or coordinated effort by the Democratic Party. If Kavanaugh is appointed without a real fight is would be a disgrace and a betrayal. This would be another chapter in the Democrats failure to seriously resist Trump’s attacks.
Pushing Back Against a Conservative Court
While Kavanaugh on the Court does pose a real danger, many in the establishment and mainstream media are taking a fatalistic approach, assuming that his appointment will lock the Court into a reactionary majority for a generation. However that outlook entirely leaves out the pressure of social movements which have historically forced the hand of even the most conservative Courts and administrations.
The Burger Court of the ‘70s was full of conservative Nixon appointees and many feared that they would roll back landmark cases like Brown v. Board of Education. However, the tide went in quite a different direction and it was under the Burger Court that Roe v. Wade was passed. Was this because the nine Justices had a dramatic change of heart? Of course not. It was the immense pressure placed on the court by the women’s and youth movements that forced the Court to take bold steps forward.
Beyond the Court
The Supreme Court as an institution is designed to act as a check on the democratic will of the people expressed in Congress. In reality, it is an unelected body which is there to defend the long term interests of the ruling class. Defending those interests, however, means that at times they make concessions in the face major shifts in society over the heads of capitalist politicians.
This was the case with the recent ruling legalizing same-sex marriage across the country. Having Justices on the Court who have made a commitment to defending women’s rights, union rights, the rights of LGBTQ people and people of color can make winning temporary victories easier. However, that by itself is no guarantee that the Court will act in the interests of working people.
As the struggles around Roe v. Wade and Brown v. Board of Education demonstrated, it is only with a decisive movement of ordinary people committed to disrupting business as usual that the Supreme Court is forced to make concessions. In challenging the appointment of Brett Kavanaugh and in fighting for broader gains in the coming years, we can look to history for proof that what is ultimately needed is a decisive, coordinated, and united movement of working and oppressed people willing to stop at nothing in fighting for our rights.