Supreme guardians of the status quo

April 29, 2010

Elizabeth Schulte looks at the myth of the "impartial" Supreme Court--and why the court has most often acted to preserve the status quo rather than defend justice.

WHEN JUSTICE John Paul Stevens made his announcement in April that he was stepping down from the Supreme Court this summer, a familiar debate began all over again among the media commentators.

Would Barack Obama--the first Democrat with the opportunity to make Supreme Court appointments in over a decade--shift the court in favor of a more liberal agenda, especially with several important decisions, including possibly his new health care law, seemingly headed for the court?

The opportunity to fill an empty Supreme Court seat--it's one of the top reasons many progressive-minded people believe they need a Democrat in the White House. This last election, it was a pretty convincing argument, considering what the last Republican administration did with the Supreme Court, adding conservative neanderthals Samuel Alito and John Roberts (as chief justice).

But as the debate over the Supreme Court appointment begins, the contradictions inherent in the court itself become exposed for everyone to see.

U.S. Supreme Court justices (clockwise from top left): Samuel Alito, Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor, Clarence Thomas, Antonin Scalia, John Roberts, John Paul Stevens and Anthony Kennedy
U.S. Supreme Court

The court is supposed to be impartial, made up of unbiased men (and a couple women) who--appointed for life--stand above politics and make decisions based on the "rule of law." So when an appointment is on the horizon, the accusations fly fast and furious. Will the new justice be a "judicial activist" or a "strict constructionist"?

Even to the naked eye, it's obvious that the justices do have their own set of opinions and politics. Alito, for instance, doesn't hide the fact that he'd like to see Roe v. Wade overturned, or that he was a member of a fanatically anti-affirmative action (and anti-coeducational) group called "Concerned Alumni of Princeton."

Yet the Supreme Court is still considered "above politics." How exactly?

COMMENTING ON his upcoming choice to replace Stevens, Obama simply said, that the nominee "will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens."

That, however, would be a tall order. Because despite the fact that individual justices have their own individual ideas about how to rule, they all share an understanding of the role they play in the U.S. political system, and that takes precedence over all else.

That role: Preserving the status quo.

So no matter how the justices' individual political leanings are characterized, the Supreme Court as an institution exists to protect the interests of those in power in society.

When corporate interests are at stake, the court almost always comes to the rescue of business interests. This couldn't have been more obvious in February, when the court voted 5-4 to overturn laws that would restrict businesses's ability to contribute to candidates and political parties.

On the other hand, the interests of workers and the poor usually take a backseat. In 2002, when Hoffman Plastic Compounds refused to give back pay to an undocumented worker after he was illegally fired for union organizing activities, the court sided with the company in denying him what he was owed. In the twisted logic of the law, the worker was denied his right to earn a livelihood, first, because he tried to organize a union, and second, because he was considered "illegal" in the eyes of the highest court in the land.

The early 20th century Socialist Party leader Eugene V. Debs served a six-month sentence for his part in the great Pullman railway strike of 1894. When he got out of jail, he asked:

And how does it happen and why does it happen that corporations are never restrained? Are they absolutely law-abiding? Are they always right? Do they never transgress the law or is it because the federal judges are their creatures?

If all the common people united and asked for the appointment of a federal judge, their voice would not be heeded any more than if it were the chirp of a cricket. Money talks. Yes, money talks.

And I have no hesitancy in declaring that money has even invaded--or the influence, that power conferred by money, has invaded--the Supreme Court and left that august tribunal reeking with more stench than Coleridge discovered in Cologne, and left all the people wondering how it was ever to be deodorized.

There is something wrong in this country; the judicial nets are so adjusted as to catch the minnows and let the whales slip through, and the federal judge is as far removed from the common people as if he inhabited another planet.

When corporate interests are served by war, the Supreme Court backs that up as well.

During the First World War, when laws were passed criminalizing criticism of the war, the court gave its resounding approval. Even liberal justices Oliver Wendell Holmes and Louis Brandeis joined in the unanimous decision to uphold the imprisonment of dissenters.

The Supreme Court demonstrated that it is one thing to have the right to free speech, but a completely different thing to actually use it. And so rather than upholding this supposedly inalienable right, the court explained why it could be barred. Thus, when Debs used his right to free speech to oppose the war in a public oration in 1918, the court unanimously upheld the verdict against him, sending him to federal prison.

Debs knew what the verdict would be beforehand. This is what he said about the judicial system during that famous antiwar speech in Canton, Ohio:

Who appoints our federal judges? The people? In all the history of the country, the working class have never named a federal judge.

There are 121 of these judges, and every solitary one holds his position, his tenure, through the influence and power of corporate capital. The corporations and trusts dictate their appointment. And when they go to the bench, they go, not to serve, the people, but to serve the interests that place them and keep them where they are.

Why, the other day, by a vote of five to four...they declared the child labor law a majority of one, the Supreme Court, a body of corporation lawyers, with just one exception, wiped that law from the statute books, and this in our so-called democracy, so that we may continue to grind the flesh and blood and bones of puny little children into profits for the Junkers of Wall Street. And this in a country that boasts of fighting to make the world safe for democracy!

DESPITE THE fact that the purpose of the court is to be a barrier against challenges to the status quo, sometimes the justices can't help but be influenced by the world around them. So when people in society at large have mobilized to wage a challenge to injustice, the court can be pressured to respond.

When African American students sat in at lunch counters in the segregated South and when thousands more took up the fight for civil rights, it had an impact on public opinion at large--and on the Supreme Court.

The antiwar, Black Power, women's and gay movements of the 1970s had an impact on the way society at large began to view the ideas of liberation and justice--and this had an impact on the Supreme Court's decisions, too, as the justices ruled in favor of legal abortion and suspending the death penalty.

It's definitely the case that we can't rely on a Supreme Court justice to do the right and just thing--any more than you can rely on a member of Congress or the president or a corporate board. So we have to follow the same recipe we use when we deal with any of these esteemed bodies.

1. Organize ourselves. 2. Protest to apply the pressure needed to win our demands. 3. Repeat, until we win.

More than that, the protest actions we organize have the potential to make an impact not just on the justices on high, but on the world we live in--a world that is rarely touched by the high and mighty justices of the Supreme Court.

The grand ideals of freedom and democracy that the Supreme Court is supposed to uphold are a universe away when a cop is racially profiling a driver, or when an employer is firing a worker, or when the president is ordering troops to occupy another country.

For a class on "Law and Justice in America" in the 1970s, radical historian and activist Howard Zinn sent his Boston University students into the neighborhoods to investigate and compare "the realities of justice against the word of law."

In an article for the Civil Liberties Review, Zinn reported on what they found:

Our actual freedom is determined not by the Constitution or the Court, but by the power the policeman has over us on the street or that of the local judge behind him; by the authority of our employers; by the power of teachers, principals, university presidents and boards of trustees if we are the welfare bureaucracy if we are poor; by prison guard if we are in jail; by landlords if we are tenants...

Over the last four years, my students, checking formal constitutional rights against the realities of everyday life in the Boston area, found these formal rights meaningless.

When we protest and defy unjust laws--like those that criminalize undocumented immigrants or bar LGBT people from having the rights of married people--we have the power to push these laws back and defeat them. And we have the power to defeat the unjust and discriminatory ideas behind these laws.

As Zinn concluded, "Lacking traditional forms of power and wealth, we can only create a force out of what we have: our assembled selves, our ability to withhold our labor, to withdraw our compliance, to take hold cooperatively of the resources at hand."

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