The death of Ruth Bader Ginsburg will probably decisively end an entire era in the role of the US Supreme Court and how it is seen by the great majority of Americans. As we will see, it could also have a very immediate and direct effect on the outcome of November’s elections. That’s true because the most likely outcome is that the in-person voting on Nov. 3 won’t settle who wins, the decision is delayed for days or even weeks as mail-in votes are counted, widespread open conflict over attempts to get mail-in votes discounted ensues and the whole mess ends up in the Supreme Court, which by then could have a 5-3 decisive Trump majority with one swing vote (John Roberts).
Purpose of “division of powers”
The framers of the Constitution organized the US government in such a way as to ensure that the masses would not be able to overly control the federal government. That was what the famous “checks and balances” is all about. They did this not only to prevent working class representatives from taking over the government, but also to prevent some sort of demagogue from doing so and creating havoc.
That was also the purpose of the electoral college. Now, the role of the electoral college has transformed into its opposite. Something similar threatens with the Supreme Court.
Increasingly prominent in recent years, the Supreme Court is meant to portray the image of “Justices” (sic) who stand above partisan politics and even above political ideology. Their role is supposed to be to impartially rule on the law and the Constitution. This gives the Court moral authority in the eyes of tens of millions of Americans, and that moral authority is necessary for the US capitalist class to rule in the old way – capitalist democracy.
Chief Justice John Roberts
Chief Justice John Roberts is known to be particularly determined to maintain that image. After he and four other Justices ruled against a Trump order, Trump criticized that ruling as being made by an “Obama judge”. In a rare rebuke of the president, Chief Justice Roberts replied: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. The independent judiciary is something we should all be thankful for.”
It has been increasingly difficult for Roberts to maintain that image, however. Until yesterday, the Court was divided into four Justices (Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh) who were dedicated to driving through the bigoted and anti-worker, hard right Republican agenda, the view of the court as being apolitical be damned. Another four (Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan) played the role of encouraging the “seeking of justice” through the courts. In order to do this, some victories must be possible. Chief Justice John Roberts was the swing vote. He vacillated between being ideologically aligned with the former four and wanting to maintain the image of “(impartial) rule of law” that the Supreme Court is supposed to stand for.
Ruth Bader Ginsburg
Ginsburg was the perfect face of the first (and more liberal) group.
She first made her reputation, and therefore also her career, as a lawyer for the ACLU and similar groups arguing anti-discrimination cases and she was first appointed to the federal court system by (conservative) President Jimmy Carter. In that role, she was known as a “’cautious jurist’ and a moderate” and she worked closely with far right conservatives Robert Bork (later rejected by the US Senate for the Supreme Court because of his hard ideological bent) and Antonin Scalia. When President Bill Clinton nominated her for the Supreme Court, the LA Times reported that nomination in these words: “Clinton Picks Moderate Judge Ruth Ginsburg for High Court : Judiciary President calls the former women’s rights activist a healer and consensus builder.”
On the court, however, she was forced to become more polemical in condemning decisions of the majority. That was because that majority was becoming increasingly extreme. There was, for example, the majority decision to allow an employer to force employees to agree to go before arbitration instead of allowing that employee to join a class action lawsuit. Ginsburg warned that that was headed back to the bad old days of “yellow dog” contracts which forbade workers from joining a union. Those were harsh words for a Supreme Court Justice, given that in order to maintain its impartial image the Court also has to maintain an image of some sort of unity among the Justices.
Post-Ginsburg Supreme Court
Now, before Ginsburg is even in the ground, the fighting has started over whether Trump will be able to appoint a new Justice. What is at stake is whether the “damn the torpedoes, full speed ahead” wing of the Supreme Court – the Republican/Trump Justices (whose existence Roberts denies) – will have an absolute majority. That is crucial because this court could end up deciding the upcoming election.
Team Trump is mobilizing lawyers across the US to find every excuse possible to challenge every main-in ballot for Biden they can find. This is in the context of it being entirely possible – in fact even likely – that in several states Trump may win the in-person votes but the mail in ballots will overcome this. For example, in Wisconsin (a battle ground state) 8% of Republicans plan to vote early by mail while 76% plan to vote in person.
Politico reports “In North Carolina and Pennsylvania, Democrats have a roughly 3-to-1 advantage over Republicans in absentee ballot requests. In Florida — a must-win for President Donald Trump — the Democratic lead stands at more than 700,000 ballot requests, while the party also leads in New Hampshire, Ohio and Iowa…. [In] Pennsylvania… nearly 175,000 Democrats who sat out the last race have requested ballots, more than double the number of Republicans.”
Trump Hardens Base
Everything Trump is saying is aimed at hardening up his base to accept and support the most extreme actions – those most outside the norms of capitalist democracy. The Washington Post reports that 43% of Republicans think voter fraud associated with mail-in ballots is a “major problem. Only 11% of Democrats think that. This is preparing his base for street protests, even including violence and threats of violence, to prevent the counting of mail-in votes – exactly the votes that are likely to swing the election to Biden.
Journalist Greg Palast advances one scenario: Massive and potentially violent street protests ensue in Florida and one or two other states as mail-in ballots are counted after November 3. Counting is suspended and neither candidate wins the necessary 270 electoral votes and the matter goes to the Supreme Court, who sends the matter to the House of Representatives. There, each state gets one vote, and despite the fact that there are more Democrats than Republicans, there are more state delegations in which the Republicans have a majority. Bingo! Trump is installed!
Five years ago, such a perspective would have seemed seemed like crying wolf, when no wolves even lived in the area. Now, yes Biden could possibly win on election night, putting all this to naught, but this scenario is also entirely within the realm of possibility. As they say, “hope for the best and prepare for the worst.”
Palast hopes that enough voters vote in-person, but that’s nearly impossible in states like Georgia and Texas, where many polling places in predominantly black precincts have been closed down. Dan Coats, Trump’s former Director of National Intelligence turned anti-Trump, hopes for a blue ribbon national election commission that will help ensure confidence and fairness in the vote. Since the Trump and his party are banking on the exact opposite, that proposal is dead in the water. Others hope that enough pressure can be exerted on a few vacillating Republican senators to prevent another Trump appointee before the elections. That did not happen with any of the other votes around actual power, such as former Trump Supreme Court appointees. It is possible that it could happen this time since it is so close to the election, but it’s far from certain. We have to consider the possible outcome if Trump is able to get another nominee through either before or shortly after the upcoming elections. If he is unable to do so, then this leaves a Supreme Court that may be paralyzed with a 4-4 vote.
Can anything stop this apparent juggernaut?
In our article asking whether “Hong Kong” and “Belarus” are coming to America, this blog quoted prominent conservative NY Times columnist David Brooks. He had written: “If Trump claims a victory that is not rightly his, a few marches in the streets will not be an adequate response. There may have to be a sustained campaign of civic action, as in Hong Kong and Belarus, to rally the majority that wants to preserve democracy, that isolates those who would undo it….”
As if by magic, just a few days after Brooks wrote his column, AP News reported that a series of union leaders were raising the need for political strikes. They did so in the context of the Black Lives Matter protests, but it seems unlikely that these same leaders aren’t hearing the voices not of their members and the rest of the working class, but of a layer of the capitalists!
Already, people are gathering around the Supreme Court building in Washington DC. Does this preview a semi-spontaneous mass protest movement on the scale of that right after Trump was inaugurated in 2017? Nobody knows. If so, a one-and-done will be nowhere near adequate. But it this may be the only way to prevent the Trumpicans from stealing the election and, on the way, set off a new truly working class movement… on the road towards creating an independent working class presence in US society and towards the creation of a mass working class party.