On Monday, the Senate approved Amy Coney Barrett to the Supreme Court by a vote of 52-48, creating the most conservative court in decades. By offering only weak resistance to Barrett’s starkly undemocratic nomination process, Democratic leaders again demonstrated their opposition to building the type of bold mass movement of workers and students, which is the only way to permanently secure crucial rights and protections.
A Deeply Conservative Judge
Barrett promises to be an anchor for the reactionary right while on the court, with previous decisions, statements, and alliances indicating she will be a threat to civil rights, labor rights, and the environment.
She is part of a far-right Christian group called People of Praise that believes women should be subordinate to men and opposes reproductive and LGBTQ rights. From 2015-2018, she served on the board of a school run by People of Praise that called LGBTQ people an “abomination,” refused to hire gay teachers and effectively banned gay students.
She has refused to say whether Roe v. Wade was correctly decided, saying only that it is a legal precedent. But, she wrote in 2013 that stare decisis, the practice of the court abiding by precedent set in earlier cases, is “not a hard-and-fast rule” when dealing with constitutional law.
And while an appellate judge, she indicated she was in favor of tightening rules for when the parents of a minor seeking an abortion must be notified, requiring abortion providers to bury or cremate fetal remains and banning abortions based solely on a fetus having a disability.
During her Supreme Court confirmation hearings before the Senate Judiciary Committee, Barrett refused to acknowledge the fact of climate change as settled science. Her father was an attorney for Shell, the oil company responsible for a huge share of the climate devastation threatening the future of our species.
Barrett has also indicated she will be a hostile force against workers, especially workers of color. In August of this year, she ruled from her appellate bench that GrubHub drivers could not file a class action lawsuit against their employer, a dangerous precedent as more and more workers are drawn into the precarious gig economy. In 2019, she ruled against a Black Illinois Department of Transportation worker who alleged experienced racist harassment at his workplace and who said his firing was racially motivated.
Trump has openly called for vigilantes to engage in voter intimidation and hinted he will refuse to leave office, planting seeds to indicate he will declare any unfavorable election outcome to be invalid. During her confirmation hearings, Barrett refused to say whether voter intimidation is illegal or whether leaders should commit to a peaceful transition of power, indicating she will remain loyal to the man who appointed her.
With the outcome of the election likely to still be undecided on election night and contested in the coming days and weeks, Trump seized on the opportunity to nominate a new justice to entrench a reactionary Supreme Court majority that he hopes will rule in his favor should the outcome of November’s election ultimately fall to the court to decide.
The Supreme Court is No Ally
The Supreme Court has proven it is an unreliable ally at best for Black and brown people, women, LGBTQ people, immigrants, and anyone struggling for healthcare, against economic inequality, and for a clean environment.
The role of courts under capitalism is to uphold the status quo, defending the interests of society’s wealthy elites. This unelected group of judges who serve for life is far from an “impartial,” nonpartisan body.
In July, the court ruled employers can deny all contraception coverage under the Affordable Care Act on religious or moral grounds, a rule that will result in an estimated 125,000 people losing contraception coverage. While the Obama administration had already carved out the initial ACA exemption of free contraceptive coverage on religious grounds, the Trump administration broadened this exemption, which has now been upheld by the Supreme Court.
In June, the court decided that a Louisiana law aimed at limiting abortion by requiring doctors to have admitting privileges at nearby hospitals violated the Constitution. While the ruling represents a real victory against another attempt from the right wing to weaken abortion access, Chief Justice Roberts, who was the swing vote, said his decision was based on settled legal precedent and previously signaled he could vote to restrict access in the future.
Over the years, the court has voted to allow stop and frisk, an end to school desegregation efforts, the decimation of public sector unions, rampant voter suppression, fossil fuel companies recklessly causing oil spills with near impunity, and corporations spending unlimited money to influence our elections. These are just a handful of the ways the Supreme Court has upheld the rights of those in power to wreak havoc on the lives of working people, and they include decisions that were made by courts that were considered liberal, or at least moderate.
Even the victories contained in famous Supreme Court cases concerning key rights, like Roe v. Wade in 1973 and the decision legalizing marriage equality in 2015, were not won solely in the courts. Those massive gains were won in the streets first, with dynamic, mass movements for abortion access and LGBTQ equality making it very difficult for the courts to deny these rights.
Nor is the presence of legal victories a bulwark against sexist, racist, homophobic, and anti-worker attacks. For example, the right has spent decades chipping away at abortion rights on the state level, with heartbeat bills and restrictions aimed at forcing clinics to close.
While it’s possible to wrench victories for the working class from the legal system, no one should see the courts as the primary vehicle of change. Movements that unite broad sectors of working people are the only real path forward.
Democrats Roll Over
As during the nomination of Brett Kavanaugh, the leadership of the Democratic Party refused to put up any serious fight against this deeply conservative judge. They could have used their platform to call for mass street protests and organized actions against Barrett’s nomination. But, they prefer to offer symbolic resistance rather than encourage mass struggle against the coming attacks on the working people who make up a substantial part of the party’s base and the working class of the U.S. as a whole.
California Senator Dianne Feinstein, a Democrat and the ranking member of the Senate Judiciary Committee, praised the Senate’s handling of the stage-directed, undemocratic confirmation hearings. Joe Biden said during the first presidential debate in September that he’s “not opposed” to Barrett’s nomination and that the judge “seems like a very fine person.”
Last Wednesday, Democratic members of the Senate Judiciary Committee announced they would “boycott” Thursday’s vote to send Barrett’s nomination to the full Senate for approval. Far from being a serious act of resistance, this merely prompted Senate Republicans to modify floor rules in order to move forward with a vote without the usual quorum. Senate Democrats participated fully in Monday’s final confirmation vote.
The boldest solution some Democrats have offered is the possibility of expanding the court past nine judges if they win control of the White House and the Senate, an establishment solution to problems the establishment created. Besides, Biden has already indicated he’s unenthusiastic about the idea of expanding the court.
We Need a Mass Movement
Democrats refused to throw their support behind a mass movement, which would have been the only real way to block Barrett’s nomination. As always, their fear of alienating suburban, middle class people who they see as potential swing voters stood in the way of the Democrats encouraging genuine class struggle and worker power.
In the coming years, Democrats will point to Trump’s impact on the Supreme Court as an insurmountable hindrance on struggles for social and economic justice.
But, a clear conservative majority on the court does not mean working people cannot win serious gains. When the court decided in Roe v. Wade that the Constitution protects the right to an abortion, the court included four conservative, two centrist, and three liberal justices. All four conservative justices had been appointed by President Richard Nixon; three out of four of them ruled in favor of the constitutional right to an abortion. This was in large part because a powerful pro-choice movement forced the court to make a concession to the masses.
The Democrats will offer only a weak resistance to the right-wing attacks that are sure to come from this new super-majority of conservative Supreme Court justices, and will continue to shy away from bold strategies based on mass struggle and systemic changes. Rather than stepping back from struggle, we should use this nomination as a springboard to organize in our workplaces, neighborhoods and schools. Instead of relying on electing Democrats as protection against Republican threats, we need a movement of massive street protests, coordinated workplace actions like strikes and widespread school walkouts to fight back.
This movement must link together issues like the government’s disastrous response to the pandemic, the climate crisis, and the entrenched racism and economic inequality that permeates our society.
If Trump tries to steal the election next week, this movement will have an urgent task on its hand: defending the vote. Clearly the Supreme Court would be nothing more than cheerleaders for Trump’s attempts to steal a second term for himself and we’d need a mass movement to demand all the votes are counted.
If Biden is in office, the need for such a mass movement does not go away. If the Democrats win control of the White House and the Senate and hang on to the House of Representatives, we should build a movement to exert massive pressure on them to support policies they have up until this point resisted, like Medicare for All and a Green New Deal.
Organized labor must come out in force in support of this mass movement, along with existing anti-racist, environmental and pro-choice groups. Social movements like Black Lives Matter and the fight for abortion rights are not inherently removed from the day-to-day issues facing workers. The best way to link these movements is through a genuine workers party, independent of the Democrats and all corporate interests that will unapologetically fight for the changes we need.
When workers and students of all backgrounds unite, we can build an unstoppable movement that can block attacks from the reactionary Supreme Court and push forward for a better world for all.