The Supreme Court: Why the Shift to the Right?
Is It all the fault of Trump and the Federalist Society?
Will voting harder reverse the loss of our rights?
In its Spring 2022 term , the USSC took a major turn to the right. For the first time in U.S. history it overturned a previously established constitutional right — -abortion rights for potential mothers. After nearly 50 years, pregnancy capable people in over half the U.S. states will have no right to abortion or have It severely restricted. The reasoning of the Dobbs decision lays open the possibility of attacks on other established rights based on privacy. Though Alito’s opinion denied this, Clarence Thomas’ dissent spelled this out. He would like to allow states to criminalize homosexuality, same sex marriage and contraception.
Overturning Roe vs. Wade was the most noted of its decisions but it also turned to the Right in several ways: 1) It undermined separation of church and state by allowing public prayer by coaches at public school events and state funding for religious schools 2) It weakened Native tribal sovereignty , allowing state control of Indian reservations 3) weakened Miranda rights by protecting cops who don’t advise arrestees of their rights 4) It gutted EPA regulation , especially of greenhouse gasses and finally it overturned a 100 year old gun control law in NY state.
Media pundits have remarked on all this. They attribute these changes to a hostile takeover of the Court by Federalist Society justices. They especially point to Trump’s appointment of Gorsuch, Kavanaugh and Barrett as the core of the rightward shift.
This analysis goes along with the talking points of the Democratic Party. Pelosi, Schumer , Biden et. al. want pro-choice people to “vote harder” so the next appointments to the Court will be more liberal. They want to use the overturn of Roe as a way to energize Democratic Party voters.
They want to blame a society of conservative lawyers rather than the ruling class as a whole, both Republicans and Democrats.
With the exception of legalization of homosexual sexual activity and marriage , rights won in the 60s and early 70s have been eroded for 50 years. Affirmative Action has been watered down to almost nothing. De Facto segregation in the schools has grown. Mass incarceration especially of Black people has skyrocketed . Social programs have suffered from underfunding. Wealth has concentrated to levels of the 1920s. Unions have been subjected to continuous attack with little legal relief. The goal of all this was to divide the working class and make it easier to exploit workers. The overriding aim was to increase profits and the expense of wages. It was to concentrate wealth to raise the rate of profit. It was to increase the rate of exploitation by cutting the private and social wage ( government social and education programs).
The turn to the right that pundits have noted in 2022 , really began nearly 50 years before. In the 1970s the U.S. ruling class faced a crisis of profitability. This came in part from competition from Germany and Japan. The ruling class also felt safe in attacking the gains of the radical period because the level of struggle had fallen off. It no longer feared the mass movements that had forced concessions. Some of the weakening of mass movements came from severe government repression including murders of Black Panthers.
It shifted to an economic strategy of neo-liberalism: tax cuts for corporations and the rich, de-regulation of the economy, gutting of social programs, weakening unions etc. Another part of this was the push for military spending. If the U.S. was less able to compete economically, it could still dominate militarily. There were initial probes at this under Nixon and Ford but it accelerated under Carter and especially Reagan . This general policy has continued since under Republicans and Democrats. Biden modified this by pushing for Federal infrastructure spending to compete with China but still giving construction contracts to private corporations.
The U.S. ruling class is still facing deep economic instability. Its profitability is still under threat from other countries and has not fully recovered from the Great Recession of 2008. The number of “zombie” corporations has never been higher. Corporate debt has vastly increased. High paper profits are largely fictitious — -based on speculation rather than actual production. When the U.S. dominated the world economically and militarily in the 50s and 60s , the ruling class was largely united. Even Republicans accepted continuation of New Deal programs. Democrats as much as Republicans engaged in anti-communist witch hunts. They agreed on foreign policy. They were also united in the turn to neo-liberalism in the 70s.
The continued crisis of profitability especially since 2008 has divided the ruling class and moved it further to the right. When no general policy can assure the desires of the whole top 1% the thieves fall out among themselves. Many of the less wealthy corporations have felt the downward pressure on profits most sharply. The multi-millionaires allied with a handful of rightist billionaires have decided that the previous attacks on workers and the poor have not gone far enough. They want to further divide the population with savage attacks on trans people, gay people, immigrants etc. They want to use these attacks to concentrate more wealth at the top. In some cases they are willing to ally with the “ insurgent supremacists”, mostly middle class people who would like a Fascist or quasi-Fascist solution. These right wing ruling class elements are not now calling for Fascism in the U.S. , but are willing to use Fascists and quasi-Fascists to push politics further right. They were even willing to countenance disruption of the normal electoral process as on Jan. 6, 2021. The Republican Party has been heavily influenced by if not taken over by this wing of the ruling class.
The promotion of divisions in the working class and middle class is bolstered by scapegoating and conspiracy theories. Whether the right-wing rich believe these theories or not, they are useful to whip up divisions and win political support for anti-human policies.
The neo-liberal period has been one of declining living standards. Student debt , housing and health care prices have shot through the roof. Millenials and Gen Z can expect to have a lower standard of living than their parents. This decline has hit workers and the poor the hardest. It has however also impacted small business owners and independent professionals. The concentration of wealth within the capitalist class has also relatively impoverished the petit bourgeoisie. This has driven some sections of the middle class to take the bait and accept the spurious solutions of the rightward moving section of the capitalist class. Middle class economic decline has fueled the grass roots right wing movement in all its varieties, from MAGA to Nazis and has spilled over into sections of the working class. In the minds of right wing activists, economic decline is caused by loss of social status as whites , usually white men. It is therefore wrapped up with misogyny , racism, anti-gay bigotry, aggressive nationalism etc. The grass roots right wing movement is not the independent factor driving the shift to the Right at the top. It is created by economic decline and the right wing shift among sections of the ruling class. It is also often directly funded by right wing capitalists. Once it is moving, it creates a pull to opportunist politicians which increases the shift to the right at the top
The working class has resisted the loss of living standards. However, its resistance has been stymied by low unionization and class collaborationism by the union bureaucracy. The resulting low level of struggle has opened some workers up to individualist , right wing solutions. Deteriorating conditions have radicalized large sections of the poor and working class to the left . The support for “socialism” has never been higher. This sentiment has broken out in sporadic struggle, notably the Black Lives Matter movement. This shift to the right among sections of the middle class and to the left by some workers and poor people has created extreme polarization. The polarization is not even. Most people in the U.S. support the left side of major issues. They are for abortion rights, raising taxes on the rich, for more rights for immigrants and support unions. Liberal pundits misunderstand polarization as a failure of communication and urge people to learn to talk to each other.
The largest wing of the ruling class, most of the billionaires , do not yet see the need for the Trumpian hard right shift. They funded Clinton and Biden. They are not under as much economic pressure as the mere multi-millionaires. They prize stability and praise “American Democracy”. They see no need for attempts at undermining the “normal” constitutional processes which have allowed their stable undemocratic rule for over 200 years. They and their media supporters (MSNBC, CNN etc.) call for the heads of the “ insurrectionists” including Trump. Even the billionaires would be quite happy to turn to the “insurgent supremacists” and end constitutional “democracy” if they felt it was needed to maintain their profits. Its just that they don’t think now is the time.
Though most of the billionaires are united in opposing Trump’s attempted coup, they do not have a unified policy to move forward. Biden’s Build Back Better plan was stymied by divisions in the ruling class, including in the Democratic Party. They wanted more resolute government action but were not willing to tax themselves to fund it. While they oppose critical elements of Trumpism they have no unified way forward on all issues. .
They are generally united on the need to reassert U.S. imperial hegemony in alliance with Europe, Canada and Japan. They reject Trumps go it alone “America First “ policy as hurting U.S. interests overall.
On domestic issues, they are less united. In general , they are not convinced of the usefulness of the new rightist attacks on Trans people , CRT etc. , but they have no principled opposition to fomenting divisions. They have gone along with the roll back of the rights of the oppressed for nearly 50 years. They see the need for continued austerity and low taxes on the rich — so are only willing to even consider rolling back some of the Trump tax cuts. Nor are the billionaires united on all issues. Some are more accommodating to the Far Right than others.
In general, the more liberal wing of the ruling class, represented by the Democrats has no clear policy. They want to appeal electorally to liberal people for votes, but are not convinced of the need to deliver real reforms. They may not like some of the right wing attacks, but have no courage of their convictions. On abortion for example, they were quite willing to allow the erosion of abortion rights over the last 50 years. They will now likely accept a situation where millions of women have restricted rights as long as enough women can still enter the work force. The Democrats are derided by many liberals as being without backbone. The primary problem is not lack of backbone for clear policy positions. It is that their fundamental interests are the same as that of the right wing. They lack firmness because they have no firm position opposed to the Right.
What should be the Left’s response? First of all , we need to understand that even the current shift to the right in the USSC does not result primarily from a conspiracy of the right wing movement. It is certainly not primarily driven by the “Trump Base” or the Fascist and quasi-Fascist groups. The U.S. ruling class has been moving to the right for a couple generations. This has resulted from the competitive nature of capitalism. The liberal wing of the capitalist class, exemplified by the Democratic Party, has laid the basis for the current renewed rightward shift with its long erosion of democratic rights and refusal to offer an alternative that would even partially meet the needs of middle class and working class people. Though it may have tactical differences with the Trump wing, it is no friend of workers or the poor.
Second, we need to understand that policy at the top is shaped by the ruling class need to respond to struggle below. We won civil rights, voting rights, affirmative action, abortion rights etc. by mass struggle. We did not win these by electing nicer politicians. Even in 2018, teachers and other education workers won new funding for education by mass strikes. The “Red State Revolt” forced even Republican legislatures to grant new funds. When the ruling class understands that workers will disrupt their plans, they have to change plans. This change in plans may include more repression , but it also often includes granting concessions to popular demands. The best way to shift overall politics in the U.S. back to the left is to build struggle in the streets, schools and work places. Only this will fundamentally shift the thinking of politicians and corporate heads. The more independent this struggle is, the more effective it will be. Support for the Democrats in elections undermines that independence and weakens our ability to win reforms
Third , we need to defend our remaining democratic rights from the government and from right wing attacks . We need to actively and publicly oppose those who would whip up racism, sexism etc. and especially the Fascists and quasi-Fascists etc. We need to defend voting rights, free speech. abortion etc. In doing so, we need to understand that no section of the ruling class or its parties actually support our democratic rights on principle. This defense must be a grass roots movement.
Fourth, we need to reject the pundit/politician line that the U.S. is a democracy. The founding fathers were anti-democrats and made that clear. The democratic rights we have had to be won from the ruling class at all stages of U.S. history. The Democrats again want to say that “ this is the most important election of our life time.” Their rationale is that if the Republicans win, they will end our “Democracy”. They claim that the only way to defend “Democracy” is to vote Democrat. In fact, no bourgeois democracy actually carries out the will of the people. A recent Princeton University study called the U.S. an oligarchy.
Besides the general domination of capitalists over government in bourgeois democracy, the U.S. has many structural features that already insure lack of popular control — -Senate, Supreme Court, Electoral College, restricted voting rights, Gerrymandering, separation of powers etc. We need to fight for real democracy, not defend the undemocratic constitution.
The attempted coup by Trump would have been a set back for voting rights and the fight against racism. However, it would not have ended bourgeois democracy in the U.S. The ruling class is not ready to junk its constitutional experiment so lightly. The threat of Fascism comes from the “insurgent supremacists”, Proud Boys, Oath Keepers, Nazis etc. — -not from the Republican Party as much as it flirts with these groups. The Republican leaders want a more conservative version of bourgeois democracy, not its end. They are akin to Orban of Hungary, or Modi of India, not Hitler or Mussolini. There is a more authoritarian version of bourgeois democracy on offer . This trend toward a more authoritarian version of bourgeois democracy is international coming from the crisis of neoliberalism. We need to oppose any move toward a more authoritarian version of bourgeois democracy without falling for support of constitutionalism, patriotism and the Democratic Party.
Finally, socialists need to build a strong organization that can win people to working class independence. The gains we have won have been won in struggle. Only a strong grass roots movement that threatens the wealth, power and legitimacy of the ruling class and their system can force concessions from them. We did not win abortion rights by electing Democrats. We forced even the mostly Republican Supreme Court to grant Roe vs. Wade by massive organizing. As Frederick Douglass reminded us:
“ Power concedes nothing without a demand. It never has and it never will. “
There is another reason we need a strong socialist movement. Only such a movement can present an alternative to dissatisfied workers and poor people who reject the status quo. Tepid liberalism will not counter the pull of right wing ideology. Only by fighting back in solidarity can people be broken from right wing individualism. Socialist movement and organization can help lay the basis for this solidarity and provide an alternative to scapegoating.
In the face of the shift to the right at the top we need to adopt the slogan of IWW leader Joe Hill “ Don’t mourn ! Organize!”