If there is to be a coup – meaning the overthrow of the norms of capitalist democracy – in the US, it will most likely be a “constitutional coup”. This means that rather than the declaration of martial law and troops marching down Pennsylvania Avenue and occupying the congress in Washington DC, it will be done through the cover of the Constitution and law. In such a scenario, the US Supreme Court would play a key role. The Court has already been taken over by far right Republicans, and a case before it today is a key test.
This is the case of Moore v. Harper. Here are the basics: Because of gerrymandering, state legislatures tend to be disproportionately dominated by far right Republicans in many states. Their domination enables them to go to ever greater extremes. In North Carolina, the state legislature passed a gerrymandered redistricting map following the 2020 census. It was so extreme that the North Carolina state supreme court threw it out as violating the state constitution. That ruling was appealed to federal courts, and the federal appeals court upheld the state court ruling. An appeal was filed before the Supreme Court, which is hearing the case right now.
“Independent State Legislatures” Legal Theory
It is important to understand the legal theory upon which this case rests in order to understand the political role of the Supreme Court. In this case, the legal theory is that of “independent state legislatures”. According to this theory, the framers of the Constitution intended the state legislatures to have sole authority over running and determining the outcome of elections. They base this on a clause in the Constitution that gives the legislatures the power to determine “the time, place and manner” of federal elections. According to this view, neither the state constitution nor state courts – never mind federal courts – can intervene in any way. This theory would give state legislatures not only unlimited power to gerrymander election districts, it would enable them to actually overturn elections. For example, if the majority of voters in a state voted for Candidate A for president, the state legislature could appoint electors for Candidate B if it so chose. That is exactly what the Republicans tried to do in 2020 when Republican fake electors tried to (mis)represent their states.
“Original Intent” Legal Theory and Robert Bork
As with all political ideas, it’s necessary to know the origins of the independent state legislature theory as well as to put it in its context in order to understand it. The entire idea rests on the “originalist” interpretation of Constitutional law. This is the view that in order to determine what is “Constitutional”, we must determine the original intent of those who wrote the Constitution. We should understand the history of this idea, even leaving aside the main point, which was that the framers’ original intent was to firmly establish the slave owning class and the budding capitalist class in power over the continent. But even from a capitalist point of view, the originalist theory was a radical departure from constitutional law until around the 1960s.
One of the first to present that idea was Robert Bork. Bork was a member of the Nixon administration who carried out the “Saturday night massacre”, in which Nixon’s attorney general was fired because he refused to participate in the coverup of the Watergate break-in of the Democratic Party headquarters. (This was the scandal that ultimately forced Nixon to resign in disgrace.) Bork’s excuse for his participation in the coverup was that the president had unlimited authority to do whatever he wanted in his branch, the executive branch of the government. This, in turn, is the “unitary presidency” theory.
Bork’s legal theories stemmed from his extremely reactionary politics.
He opposed women’s rights. He supported segregation. He called for a constitutional amendment banning same-sex marriage.
“Unitary Presidency” and “Original Intent” legal theories
In addition to the “unitary presidency” theory, Bork was one of the major popularizers of the “original intent” or “originalist” legal theory. Bush nominated him for the Supreme Court, but the Senate vetoed his nomination because he held ““a judicial philosophy far to the right of the average American” at that time, according to the legal journal, “Balls and Strikes”.
One simple fact shatters the entire “original intent” concept: Thomas Jefferson did not believe in it. In 1789, he wrote: “On similar ground, it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.”
Hide politics behind legal theories
That same journal, “Ballsandstrikes” explained the political result: “the real lesson of the Bork nomination was clear: In order for right-wing ideology to be digestible to the public, it needs to be cloaked in the language of legal technicality. Issues of politics and principle—from civil rights to voting rights and reproductive freedom—must be carefully reframed as matters of rote Constitutional interpretation. Conservatives’ concern isn’t about abortion, it’s about the scope of the 14th Amendment. They aren’t trying to stop people from voting, they’re protecting states’ rights to control their own elections. For every reactionary political position, they built a conveniently adjacent legal doctrine.”
(in)Justices simply politicians
Central to this coverup is another myth: That the judiciary – especially the Supreme Court – is entirely apolitical, that it bases its rulings entirely on its impartial understanding of the law and of the Constitution. The entire Supreme Court, conservative and liberal alike, has participated in this myth. Amy Coney Barrett said “This Court is not comprised of a bunch of partisan hacks. Judicial philosophies are not the same as political parties.” Liberal (in)Justice Stephen Breyer wrote “it is a judge’s sworn duty to be impartial, and all of us take that oath seriously.” In other words, the (in)Justices are immune to the political pressures and favoritism of elected politicians.
This is a lie. Take the case of now-dead former (in)Justice Antonin Scalia. According to the NY Times Scalia took “258 subsidized trips… from 2004 to 2014. Justice Scalia went on at least 23 privately funded trips in 2014 alone to places like Hawaii, Ireland and Switzerland, giving speeches, participating in moot court events or teaching classes. A few weeks before his death, he was in Singapore and Hong Kong.” These were all trips funded by capitalist benefactors. In fact, Scalia died of a heart attack while on vacation at a hunting lodge of one of these benefactors.
But there is more. Rod Schenk is a former evangelical anti-abortion campaigner who later repented and exposed the far right influence on Supreme Court (in)Justices. According to Politico, Schenk played a key role in building this network, which included such nonprofits as “Faith and Liberty”. This network recruited capitalists to socialize with, including pray with, (in)Justices like Scalia, Alito and Thomas. Prayer is an important way to get the message across, simply by citing one passage of another of the bible. “They do not interface with the public, so we’ve literally had to pray our way in there each step of the way,” Schenk explained.
Supreme Court (in)Justices’s Lies
Not only are the Supreme Court (in)Justices essentially politicians advancing a political agenda, but exactly because they are appointed for life, they lie even more blatantly than do elected politicians. When they were testifying under oath before the U.S. Senate, both Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett testified that they considered Roe v. Wade to have been established by precedent and therefore not subject to being overruled. Once on the bench, they and their allies continue to lie in their rulings. For example, in the case of the Bremerton high school football coach who held prayer sessions after each football game. He was placed on paid administrative leave, subsequently did not reapply for the job, but then sued the school district for infringing on his freedom of religion. The right wing, evangelical backed majority on the Supreme Court ruled in his favor. Neil Gorsuch, writing the majority opinion, claimed the coach “offered his prayers quietly while his students were otherwise occupied.” The evidence, including photos submitted, proved the exact opposite.
Moore V. Harper presently being heard
To return to Moore v Harper, the case presently before the Supreme Court, the Washington Post reports that three of the most extreme reactionary judges – Thomas, Alito and Gorsuch – seem friendly to the “independent state legislature” theory, while the liberals (Sotomayor, Kagan and Jackson) are opposed. Leading the middle ground is Chief (in)Justice Roberts. He has repeatedly expressed concern that the Supreme Court would lose legitimacy, that it would be seen for what it is – a political institution – if it went too far. Apparently he is influencing Barrett and Kavanaugh, and all three are expressing some doubts about this sketchy legal theory. Maybe they are also influenced by the fact that the majority of voters in the recent elections have rejected the most extreme right-wing ideologues. These three seem to be looking for an argument that will justify ruling in favor of the appeal (that is, legitimizing the redistricting) without going so far as to take the side of the “independent state legislature” theory. (Among other things, if that theory were made official, then hundreds of court decisions and similar actions would have to be thrown out, creating chaos in the election system.) The Wall St. Journal editors may have expressed exactly the type of excuse Roberts and his ilk are looking for. The WSJ editors wrote: that “The North Carolina constitution says nary a word about partisan gerrymandering.” In other words, the courts and the Constitution may be used to throw out some steps by the state legislatures; just not this one.
The wider implications
This will not stop here. The “originalist” legal theory started out as an outlier and has now become mainstream. Similarly with the “independent state legislature” theory which, according to the Brennan Center, was first presented “in embryonic form” by then Chief (in)Justice Rehnquist in 2000, when the Supreme Court put George Bush in the White House. How far it will go depends on the political balance of power. The recent midterm elections are a clue. In general, the majority of voters opposed candidates who, in effect, advocated overturning the 2020 election. Nor is it even necessary to get a Republican candidate elected who has the same political agenda as those others, but without overturning “the rule of law”. Such politicians as governors Ron DeSantis (Florida) and Brian Kemp (Georgia) immediately come to mind. In general, though, the Supreme Court majority is testing how far it can push their agenda. On the “left” is the few remaining (in)Justices who want to maintain the status quo. In the middle, apparently grouped around Roberts, are three (in)Justices who want to push things as far as they can while trying to maintain at least a semblance of legitimacy. On the far right are the three (in)Justices who simply don’t give a damn about how the Court is seen. They figure they can simply roll right over any opposition, since up to now that “opposition” is devoted to being constrained by “the rule of law”, and “law” means anything the court says it means. That is the opposition centered around the capitalist controlled Democratic Party.
Unless and until an independent working class movement develops, one which is not constrained by the Court-defined “rule of law”, the far right Republicans will go a lot further than anybody would have predicted just a few years ago.