The Supreme Court and U.S. “Democracy”
Why is the undemocratic Court the focus of democratic rights?
Are State Legislatures More Democratic than the Supreme Court?
The overturn of Roe v. Wade has highlighted the lack of real democracy in the world’s most powerful “democracy”.
Any structure of politics under capitalism is undemocratic. Capitalist states must compete against other states. To accumulate the military power they need to control, defend and sometimes advance their territory, they need a strong economy. In a capitalist world, a strong economy means a strong capitalist economy. All capitalist governments aim to produce a “good business climate”. Capitalism is based on exploitation of the working class. Capitalist states must favor capital over labor, accumulation over working class needs no matter what the voters want. This applies to local, state and national governments under capitalism
This structural bias is reinforced by outright bribery, economic threats and placement of capitalists and their agents in high places. Capitalist states are functionally pro-capitalist and organized hierarchically. Capitalist states have been thoroughly integrated into the capitalist system and cannot be extricated from it . Overcoming capitalism will require smashing the bourgeois state. Beyond the function of capitalist states, the power of capitalists in most cases makes states agents of particular capitalist interests.
Capitalism, unlike feudalism is based on the formal separation of economic and political power. Feudal lords who controlled their own courts and ruled their own manors politically also directly exploited the peasants by demanding rent and/or service. Because of the functional bias of the state, capitalists can often safely leave politics to others. Capitalists exploit in the economic realm , but don’t need to personally control the political realm. They often subcontract this work to politicians who can be trusted to pursue the interests of capitalism.
However, capitalists are a “band of hostile brothers”. This means that the state can pursue the interests of capitalism without necessarily favoring the interests of particular capitalists in competition with others. Capitalists therefore want to influence state policy . They want policies that favor their own particular interests at the expense of other capitalists. Capitalists also often have conflicting ideas about what policies will favor the needs of the capitalist class as a whole.
The U.S. constitution also has several structural features that limit democracy: the Senate, the Electoral College, Presidential veto, separation of powers, limited franchise and the US Supreme Court. These aspects were written into the original constitution by the Founding Fathers ( slave owners and merchants) to create a “republic”, not a democracy.
Over the course of centuries of struggle, the U.S. system has become more democratic. Women, Black people , poor whites and Native Americans now have the formal franchise. The Senate is now elected by the people, not the legislatures . Congress can now legislate over broader areas of society and economy.
One feature that continues is the U.S. Supreme Court which can invalidate laws passed by the Congress or state legislatures. These life appointed justices never have to face an election. The USSC is often brought up as an example of lack of democracy in the U.S. and of course it is !
For most of its history the USSC has been a conservative institution. It upheld slavery and Jim Crow segregation. It invalidated laws that attempted to regulate the economy. It approved the internment of Japanese Americans during WWII. Yet, beginning in the 1950s , it took a turn toward liberalism. Why is this?
Though the ruling class is united in upholding the interests of capitalism, it sometimes has internal policy differences. During the Cold War, the reputation of the U.S. as a democracy was on the line. International competition against the State Capitalist system required that the U.S. have a good image internationally. Jim Crow segregation was a liability.
Local wings of the ruling class in the South were quite happy with continuing Jim Crow. However, the ruling class as a whole wanted to spruce up the U.S. image. National and international corporations saw segregation as a barrier to profits and U.S. power. Because the Southern states were intransigent on this question, sections of the ruling class put pressure on the national state to overcome segregation. The President and Congress could only move so far toward integration due to the power of Southern representatives and Senators , especially with the filibuster. The main national state institution that could undermine segregation was the USSC. One of it foundational cases on this was “Brown vs. Board of Education” which mandated the end of segregation in public schools, “ with all deliberate speed”.
This case helped spur the already developing anger of Black people in the South. This was especially true of Black WWII and Korean War veterans who had risked their lives for U.S. “democracy”. Though the dominant sections of the U.S. ruling class wanted integration for their own reasons, they were reluctant to challenge the social system of the South. It took the mass Civil Rights Movement ( CRM) to force the hand of the U.S. government to challenge the local Southern ruling classes. USSC cases furthered this process.
Jim Crow was fundamentally undemocratic. From the post Reconstruction era through 1965, the vast majority of Black people in the South were denied the right to vote. This reinforced their lack of economic position and made them easier to exploit. A USSC directive and Congressional legislation could not logically be seen as a rejection of democracy, even when they came from an undemocratic Court. Of course Southern racists tried to present Court decisions and laws as undemocratic impositions on “ States Rights”. States’ rights really meant white rights and suppression of Black rights.
The Supreme Court often played a similar role through the 50’s through the early 70’s. Large sections of the ruling class saw the need to modernize the U.S. In the face of the mass movements of the 1960s and early 70’s it sometimes granted concessions that some states were unwilling to make — -The right to interracial marriage, birth control, the right to remain silent in the face of arrest, and later abortion and same sex marriage. The court made these decisions as a way to stabilize the system. It felt that continued reactionary dominance on these issues would undermine “ the legitimacy of the Court” and the whole U.S. system. Of course ruling class opinion was not unanimous. Sections of the ruling class opposed this expansion of rights, but mostly went along with it.
This began to change in the early 70s with the onset of neoliberalism. The U.S. faced declining profit rates, a weakening of U.S. international power, and declining strength of oppositional movements after the 60s. This propelled the ruling class toward cutting taxes on the rich, deregulation, privatization, cuts in social programs and attacks on unions. All of this was aimed at shoring up profits by raising the rate of exploitation. Reinforcing the structures of racism, sexism etc. to divide the working class was a part of this process. No sooner had the right to abortion been won, than it was under attack. The USSC began to move back toward its traditional conservative role.
Today, abortion rights advocates and other progressives rightfully oppose the Court’s conservatism. It is a key part of the reactionary attack on basic rights. Yet the argument of states rights still hangs over this issue. If the Court is fundamentally undemocratic , why should it have the ability to overturn decisions made by a “democratically” elected legislature? Shouldn’t the legislative branch have the last say on laws?
There are two answers to this. First there are certain rights that are fundamental to democracy. No state can claim to be a democracy if it prevents people from voting on the basis of race, gender, national origin etc. Likewise , exercise of democratic rights is impossible without bodily autonomy and freedom from arbitrary state intervention. If a woman cannot make decisions over her own body, she is not a democratic subject. If a person is precluded from marrying another because of their race or gender , they likewise cannot be full democratic subjects. Without freedom of speech , press and assembly, people cannot debate policy and self-government is impossible. This means that laws passed by a majority that restrict these rights are fundamentally undemocratic . Majority rule is the essence of democracy, but so are fundamental rights.
The second answer is that the state legislatures are themselves undemocratic. Gerrymandering, voting restrictions, overweighting of rural districts, bribery , economic pressure from capitalists etc. make decisions of the state legislature undemocratic. Today in the U.S. a large majority support abortion rights. On a national scale, the only majoritarian position is for access to abortion . On both fundamental grounds and majoritarian grounds , abortion rights needs to be affirmed.
Just as States Rights allowed continuation of legalized racist segregation and voter suppression, States Rights on abortion flouts the will of the vast majority in the U.S. and the fundamental rights democracy needs. We should demand reproductive justice enshrined in law. Under capitalism, capitalists control the state. Bourgeois democracy is not real democracy. The demands we win from that state are concessions to us that the ruling class needs to preserve order and continued smooth functioning of the economy. We can only win those demands by disruptive mass action that threaten their power and profits. Winning demands from the state is a step toward democracy even if majorities in legislatures initially oppose our demands.
Finally, even after a socialist revolution under a workers’ state the conflict of majority rule and fundamental rights could be an issue. A workers state would be run by working class majority rule. We would not have a Supreme Court that could invalidate the will of the working class. However , workers would need to realize that fundamental rights must be preserved for a workers’ democracy to continue. A group that won a vote on an issue might lose on another. This means that it will be in the interest of everyone to ensure that minority rights are preserved. Any undermining of freedom of speech, press, or assembly as well as bodily autonomy would over time destroy the basis of workers’ democracy. Protecting fundamental rights in a workers’ state will be logically in everyone’s interests. However, the political position in favor of fundamental rights cannot be taken for granted and must always be fought for. The fight for the preservation of fundamental rights in a workers’ state will be part of the process of keeping on the path to Marx’s goal of communism. — a society based on “from each according to their ability, to each according to their needs” and “ the free development of each is the condition for the free development of all”.
