Mobilizing for not-democracy

March 22, 2016

Steve Leigh looks more closely at the assumptions behind the conventional wisdom that liberal organizations need to get behind Barack Obama's Supreme Court nominee.

SINCE THE death of Supreme Court Justice Antonin Scalia on February 13, the political battle between Democrats and Republicans has been intense. Both sides are determined to put their stamp on the Court--Democrats by getting Barack Obama's nominee Merrick Garland confirmed, and Republicans trying to delay an appointment until (they hope) a Republican president can make a pick next year. and other liberal organizations are backing the Democrats and inundating supporters with e-mail after e-mail about how they can back Obama in this partisan battle, even if that means putting other issues aside. Some message describe this as the "most crucial battle of the century."

As People for the American Way declared:

We now FINALLY have the opportunity to significantly shift the balance of the Court. But Republican obstructionists in the Senate would rather hold out for the chance of a President Donald Trump or Ted Cruz to nominate Scalia's successor.

Take a second to fathom the importance of this moment. We need to do everything we can to make Republican senators do their job, confirm Judge Garland, and fill this vacancy.

Barack Obama's Supreme Court nominee Merrick Garland speaks at the White House
Barack Obama's Supreme Court nominee Merrick Garland speaks at the White House (

THERE ARE several problems with this strategy. For one, the the decisions of the Supreme Court are ultimately determined less by who its justices are and more by the balance of social forces.

History shows us that major changes in the law have been achieved because of the power of mass movements, no matter who was sitting on the Supreme Court at the time. For example, the Supreme Court legalized abortion during a Republican administration, and the decision was written by a Republican-appointed justice. Likewise, same-sex marriage was legalized by a Court stacked with right-wingers.

Agitation and mass movements were crucial in all these cases and many more. What Howard Zinn once said about the White House is just as true of the Supreme Court: What matters most is who is sitting in, who is marching and pushing for change--not who is sitting on the Court.

Social movements with this kind of power are threatening to the political and economic elite of society, and therefore are most effective to the extent that they are independent. The more tied they are to one wing of the political establishment--defined by the Democrats on one side and the Republicans on the other--the less impact they can have.

So if we want to preserve abortion rights, labor rights and any number of other rights, the most important thing we can do is build those struggles as strongly and independently as possible.

The battle over Supreme Court nominations is more of an offshoot of the contest between the parties. Obama's nominee Merrick Garland is an example. Obama put Garland forward as a "consensus candidate," supported by Democrats and Republicans alike, according to the White House. In other words, Obama isn't trying to shift the Court in a liberal direction, but to continue the flawed legacy of the current Court.

Mobilizing behind Garland's nomination won't move politics to the left. However, demobilizing struggles over important issues in order to focus on this nomination is a sure way to reduce the pressure for real change.

THERE IS a further reason that this fight is the wrong one for progressives to engage in.

The Supreme Court is a completely undemocratic institution. Lifetime appointees can invalidate legislation passed by Congress, which at least theoretically represents the people. The whole idea of judicial review is a violation of the very concept of democracy.

This is only one undemocratic aspect of the U.S. Constitution and related laws. The U.S. Senate, which ratifies Supreme Court justices, represents land, not people--fewer than 1 million Alaskans elect two senators--the same as nearly 40 million Californians.

Gerrymandering makes seats in the House of Representatives unrepresentative as well. In the last election for Congress, Democrats won the most votes nationally, but Republicans were awarded the most representatives. And the presidency is decided by the Electoral College--which is based on the unrepresentative allocations of Senate and House seats--not the popular vote.

These are just some of the structural impediments to democracy in the U.S.--and that's not to speak of the buying of elections, bribing of politicians, the lobbying industry, the use of economic power to control what laws are passed, etc. Beyond that, the majority of people have no democratic input on workplace and other economic decisions in their daily lives.

Instead of recognizing how the Constitution and the two-party system undermines democracy, most liberal groups base themselves on constitutionalism. They loudly defend the constitutional right of the president--this Democratic president, anyway--to appoint Supreme Court justices and demand that Republican senators "do their constitutional duty."

Sure, the Republicans are playing politics. Does anyone really believe that they wouldn't vote on a nominee if the president right now were a Republican?

But the real issue for anyone who wants fundamental change is not whether Republicans are obstructionist. The real issue is why do we have a Supreme Court that can invalidate laws at all? Why do we have such an undemocratic political structure in the U.S.--and how can we change that?

People who want to defend the interests of workers, oppressed people and the poor shouldn't ally with liberal and Democratic Party groups to push for the Supreme Court vacancy to be filled. We should be campaigning against the Supreme Court and all the other undemocratic aspects of the U.S political system.

We should also fight in the here and now for universal health care, free education and housing, good jobs, reproductive justice, union rights, and an end to institutional racism, war and environmental destruction. The more democratic rights and power we have, the better able we will be to win the demands we fight for.

We will never have a real democracy while we have the system of capitalism, which is based on decision-making on the basis of wealth and power, not the people. For true democracy, we will need a new system--workers' democracy over the whole economy and society.

In the meantime, campaigning for constitutionalism increases the current lack of democracy in the U.S. system and makes the fight for the needs of ordinary people that much harder.

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