Supreme Court: The savior of democracy?

The capitalist talking heads are celebrating. “It’s been five weeks now, and the institutions of our democracy held against this onslaught,” said constitutional lawyer Ben Ginsburg on CNN on Friday night. “Our democracy” has been saved; “it’s over; Biden will be next president,” they crowed. They were referring to the 7-2 US Supreme Court ruling to refuse to hear the lawsuit brought by Texas Attorney General Ken Paxton against the states of Wisconsin, Pennsylvania, Georgia, and Michigan for how those states ran their elections. The seven (in)justices voted that Texas has no “standing”, meaning it had no right to interfere in how other states ran their elections.

Is it really over? Can we now sit back and rest assured that our democratic rights – limited as they are – are now safe?

Neither the majority nor the two dissenting (in)justices (Alito and Thomas) ruled on the merits of the case which were based on two claims: First Paxton had a complex legal argument on the power of the state legislatures alone to determine how elections are run. That claim had been shot down by a Supreme Court ruling on a similar case regarding Pennsylvania just a few days earlier. Second, Paxton claimed electoral fraud (although he provided no evidence). That there is no evidence for fraud, and that the intricacies of the role of the state legislatures in running an election had already been ruled on in a similar case – these issues are really secondary. The main reason is political:

Ken Paxton (left) with Trump. Paxton is under federal indictment for fraud and corruption. Among other things, he’s probably angling for a pardon from Trump.

On Monday, Dec. 14, the electors will be meeting to vote for Biden or Trump. Biden has it sowed up with 306 electoral votes. (270 or more is a majority of the total votes.) If Paxton’s suit were even heard, it would have caused a crisis because nobody would have known until the Supreme Court ruled on the suit which electors in those four states would be the ones to meet and vote by that date. And in the case that it had won, it could have left Biden with 234 votes vs. Trump’s 232. Nor does anybody know what would happen if neither candidate gets a majority of the total potential votes. This would have meant massive confusion and a possible Constitutional crisis.

More important, if the votes in not one but four states were thrown out, this would have created a huge scandal, one which completely dwarfed any previous one including Watergate. It would have thrown the entire system of US capitalist rule into disorder. As one capitalist commentator after another has stressed, “our democracy” was threatened.

They are referring to the manner in which the US capitalist class has ruled without serious challenge ever since the Civil War.

This did not stop the Trumpicans. One hundred twenty-six Republican members of the House of Representatives and sixteen other state attorneys general joined the suit. Texas Senator Ted Cruz had asked to represent the suit in the supreme Court.

CNN commentators raged against this suit and even the editors of the Wall St. Journal opposed it. Among other things they point out that it would set a dangerous precedent because it would have opened up the power of one state to sue another over all sorts of different election procedures. Think: California suing Texas (or Georgia, for that matter) over voter suppression in those states.

So, at the end of the day, the Supreme Court (in)Justices, whose careers are not threatened by Trump and his minions, turned down what will probably be his last gasp at overturning the election result.

US Military

Jim Mattis, John Kelly and H.R. McMaster. At one time Trump was referring to them as “my generals”. He found out differently.

Then there is the role of the military brass in stopping Trump’s anti-democratic attempts. Originally, Trump included more retired generals in his administration than has any other president. These included John Kelly (former chief of staff), Jim Mattis (former Defense Secretary) and H.R. McMaster (former national security advisor). They were considered the “adults in the room”, meaning they held the closest connections with the serious thinkers among the tops of the US capitalist class. More than any other wing of the government, these military tops were and remain loyal to the US capitalist class more than to any one individual would-be dictator.

Therefore, conflict with Trump was inevitable.

One of the first signs of conflict came when Trump suggested a US invasion of Venezuela in mid 2018. Other conflicts followed, including Trump’s order for a troop withdrawal from Syria. All of these led to the resignation or firing of all these generals by June 1, 2020, when Trump threatened to use the Insurrection Act to put US troops onto the streets of major US cities. Acting military officers are not supposed to speak out on such political affairs, so it was left to a whole series of retired officers. One of them, former head of the Joint Chiefs of Staff Mike Mullen, asserted that the military tops would obey every “lawful order” of the president. This was a diplomatic way of saying that they would disobey an unlawful order. Therefore, after initially backing up Trump’s threat, head of the Joint Chiefs of Staff Mark Milley and defense secretary Mark Esper both distanced themselves from that threat.

This affair served as a warning to Trump that the military brass would resist any attempt to use the troops to overthrow the traditional means of US capitalism’s rule in the United States – “our democracy”. At least at this time.

Kash Patel with parents at a Trump rally.

In response, Trump moved to shore up his direct personal control over the military. He replaced Esper with Chris Miller who appointed as his chief of staff Kash Patel who has been in effect part of Trump’s election campaign.

Milley Warns Trump

Christopher Miller (l) and Mark Milley (r) at Veterans Day event. Milley gave Trump a warning through Miller.

However, Trump will not remove this obstacle to direct personal rule so easily, as a recent speech by Milley showed. On November 11 of this year – in other words right after the election’s outcome had been decided – and while standing right alongside Chris Miller – Milley spoke at a Veterans Day event. “We are unique among militaries,” he said. “We do not take an oath to a king or a queen, a tyrant or a dictator. We do not take an oath to an individual. We take an oath to the Constitution… In the event of a dispute over some aspect of the elections, by law U.S. courts and the U.S. Congress are required to resolve any disputes, not the US military.” (Italics added.) So, while avoiding directly speaking out on a political dispute, Milley was sending a blunt warning to Trump: The top generals of the US military would not obey any order by Trump to turn out the troops in order to overturn the elections.

In other words, it has been the most undemocratic wing of the federal government (the judiciary) and the world’s largest and most dangerous killing machine, the killing machine whose responsibility is to carry out the global interests of US capitalism by force (the US military) that are the two government institutions opposing Trump’s drive to overthrow the elections! They are doing so because the mainstream of the US capitalist class still feels that “our democracy” is the safest and most efficient means of ruling. This means of capitalist rule has managed to keep things pretty stable until now; in the main the US working class has been held fairly quiet, so why take risks? “Our democracy” has stood the US capitalist class in good stead for nearly 200 years now and they won’t abandon it easily, but they by no means are committed to it in principle.

The US working class – and socialists within the working class – should take this situation as a warning:

The new Trump supreme court will be restricting public access using the excuse of “freedom of religion” as well as making all sorts of other anti-democratic rulings.

As far as protecting the integrity of elections, NY Times columnist Jamelle Bouie explained “It was only two weeks before Election Day that four of the court’s conservatives announced their potential willingness to throw out votes on the basis of this theory of state legislative supremacy over electoral votes. It is very easy to imagine a world in which the election was a little closer, where the outcome came down to one state instead of three or four, and the court’s conservatives could use the conflict (regarding the state legislatures’ power) over a narrow margin to hand the president a second term.”

The US Supreme Court and the Joint Chiefs of Staff: Champions of democracy?

The federal judiciary, and most especially the Supreme Court, all of whose members are appointed for life rather than being popularly elected, can most certainly not be counted on to protect what democratic rights workers have in the United States.

As for the military, their political role will continue to increase. Joe Biden has announced his appointment of retired General Lloyd Austin as secretary of defense. This appointment will require a special congressional waiver because Austin has been retired for only four years instead of the required seven. Among others, both the editors of the Washington Post and Jim Golby, special advisor to both VP Biden and Pence, have opposed this appointment. Golby explains that the required seven year gap was waived in the case of the appointment of Jim Mattis because it was felt that Mattis would be able to maintain a degree of sanity in the Trump administration. In other words, it was an extremely unusual circumstance. The only other time it was waived was in the case of Truman’s appointment of George Marshall as defense secretary in 1950.

How did that appointment work out? Golby explains: “Marshall stood by as a civil-military crisis slowly developed between Truman and Gen. Douglas MacArthur, Marshall’s former Army peer. Marshall even tried to avert MacArthur’s firing for insubordination, related to Truman’s Korean War policy, before reluctantly backing the president’s call.” In other words, Marshall tried to subvert the principle of civilian rule over the military.

The bringing of the military into the civilian government is bringing the fox into the henhouse to guard against the wolf, and evidently Biden intends to continue down that path.

The problem with the subversion of democratic rights that Trump and his party overtly represent is not a matter of favoring or weakening one government institution or another. It is ironic but also significant, after all, that the attacks at this time stem from the elected branches of the government (the executive and the legislative). This reflects the existing consciousness and mood in sectors of the working class. That is where the real problem lies.

On the same day that the supreme court issued its ruling, the US senate once again failed to act to bail out millions of hungry and homeless people in the US. They felt they could get away with that without a huge outcry from any major sector of the US working class. As expected, the only mass organizations of the US working class – the unions – not only passively accepted this inaction, the leaders were silent. So was nearly the entire socialist left. With the honorable exception of a small group in New Orleans, we know of no other protests that were held. It is a struggle along these lines that can start to alter the political equation, the mood and consciousness, and the balance of class forces in the country. Then workers’ democratic rights will not hinge on the temporary interests of the capitalist class as expressed through their institutions such as the federal judiciary and the military.

The US Supreme Court and the Joint Chiefs of Staff: Champions of democracy?