The Supreme Court and Denial of Democratic Rights

From the Belly of the Beast by Barry Sheppard

Trump’s appointee for the Supreme Court, Amy Coney Barrett, will have her approval jammed through in unprecedented haste by the Republican controlled Senate on October 26.

Barrett is on the far right among judges. A member of a fringe religious group that believes the husband is the head of the household and the spiritual “head” of their wives. It is not surprising that she is vocal about her opposition to women’s right to abortion and rejects the science of climate change.

She will fill the opening on the Court made by the death of Justice Ginsberg on September 19. Trump’s choice and the mad rush to get her confirmed before the election (never before has a Justice been approved just nine days before an election) was calculated to increase the right wing majority on the Court to six out of nine justices.

This was done for a number of reasons. The first is that if Trump looses, the Republicans plan to challenge the vote in the courts, which may lead through appeals to the Supreme Court, which will decide who is President. Having a 6 to 3 majority makes it more likely that would be Trump.

The second is that the Trump administration’s attempt to get the Court to strike down the Affordable Care Act (Obamacare) is on the Court’s agenda. Opening hearings will be one week after the election.

The third relates to a 5 to 3 ruling the Court made while Barrett’s hearings in the Senate Judicial Committee was occurring. That was to allow the administration to cut short the national census (done once in ten years) of the U.S. population, which had to be extended because of the disruption caused by the pandemic.

The extended census made necessary by the pandemic meant that the census figures were scheduled to be finished after the winner of the election was sworn in as President on January 20, 2021.

The New York Times noted, “most experts said a shortened census would only worsen existing undercounts of people who have always been hardest for census workers to reach,” including Blacks and Latinos.

These increased undercounts will be augmented by Trump’s ruling that all undocumented immigrants will not be included in the census figures. Most of the undocumented are Latinos, who tend to live among documented family members.

The census figures are used in many ways. One is to allocate federal funds to areas based on population as determined by the census. It is in urban areas that most racial minorities live, which will be adversely affected.

Another way is that the census figures are used to reapportion the House of Representatives. Apportionment is the process of dividing the 435 members among the 50 states.

Undercounting Blacks and Latinos, and not counting the undocumented at all, will increase Republican representation.

The Supreme Court just announced it will move up its consideration of Trump’s ruling to November 30, before the census bureau has to turn over to Trump its figures. He then has control over what gets sent on to the Congress.

The Court’s decision to move rapidly makes it likely that there will be a ruling in Trump’s favor, probably 6 to 3.

See more Matt Wuerker cartoons at http://www.politico.com/wuerker/

The Supreme Court has a lot of power. It can strike down any law, no matter how large was the Congressional vote in its favor or what the public in its majority thinks. It can do this by majority vote by claiming the law violates the constitution.

An example was the 2013 Supreme Court ruling, before the election of Trump, that struck down the heart of the 1965 Voting Rights Act which provided federal oversight of any laws concerning voting rights in states that had a history of suppressing the right to vote for African Americans, mainly in the Jim Crow South.

The reason given was that racism was no longer an issue.

As a result, in the following years up to the present, these states have introduced new laws restricting the right to vote for African Americans.

Challenges to these laws have been rejected by the Court, upholding the restrictions.

The Republican Party has become not only far right politically, but under Trump is now a supporter of his increasing authoritarianism.

The takeover of the Court by the Republican Party has been augmented by Trump’s appointment of many far right judges in lower federal courts, which have been ratified by the Republican Senate. This will continue at least to early January when Senators elected in November take office.

Since the justices of the Supreme Court are appointed for life, this takeover is cemented in place for years or even decades, no matter who wins this and future elections.

This situation has raised the issue of the undemocratic power of the Court. Proposals to limit that power are being discussed in the media, assuming the Democrats win control of the White House and Congress in the upcoming elections.

Most Americans are unaware of the fact that the Constitution does not stipulate the number of justices on the Court, or their lifetime term. These were adopted by Congress.

The Constitution also does not stipulate whether decisions of the Court are reached by majority vote, unanimous vote, or something in between.

Proposals to push back against the Republican takeover of the Court include raising the number of justices on the Court, and appointing Democratic approved judges to the new positions.

Another is to require that decisions must be made by at least seven votes, or a unanimous vote.

Also the lifetime term of the justices could be replaced by a definite term.

However, it is unlikely that any Democratic administration would do anything like that. It would upset decades and decades of established rules adopted and approved by both parties, and would be considered radical, and too big a break with tradition endangering stability of capitalist rule.

A Democratic president and Congress most likely would hope that the Republican controlled Court would bend under public opinion, and not strike down laws adopted by Congress, or not all of them.

Another undemocratic aspect that has been questioned is the election of the president not by popular vote but by the Electoral College, a Constitutional provision.

In 2000 Bush lost the popular vote but won the vote in the Electoral Collage. The same was true in the 2016 election of Trump.

The Electoral College was put into the Constitution to “prevent mob rule”. James Madison, who was the main “framer” of the Constitution, said the Constitution had to “protect the minority of the opulent against the majority.”

The Electoral College is composed of electors chosen by the states’ legislatures according to the number of members of Congress each state has. The actual practice evolved into having electors pledged to support one of the presidential candidates elected by popular vote in each state, and ratified by the legislature.

All but two states assign which electors are sent to the Electoral College by winner take all. If the outcomes are close, the votes pledged to the candidate who barely loses are not counted.

So a candidate who loses the popular vote can still win in the Electoral College.

This is becoming understood by many to be grossly undemocratic. But to change that would take a Constitutional amendment. An amendment can be proposed by a two-thirds vote by both houses of Congress or by two-thirds of the states requesting it.

Then three fourths of the state legislatures or state conventions have to ratify the proposed amendment for it to be adopted.

This won’t happen under current conditions.

Other undemocratic aspects of the Constitution are being questioned.

How United States was founded is at the root of these undemocratic provisions. It was the fact that slavery of Africans was the foundation of the economy in many states that meant that the original Constitution had to make provisions to approve of slavery.

This meant that the slave states had to have control over their politics and economy. This was the origin of “states rights” that continued in the Jim Crow system of racial oppression after slavery was overthrown by the Civil War,

The Constitution does not say that all citizens have the right to vote. Control over who has the right to vote, and all aspects of voting, was explicitly given to the states, not the federal government, from the beginning.

In the period right after the Civil War known as Reconstruction, before the counter revolution installed the Jim Crow system, three important amendments to the Constitution were adopted.

The Thirteenth Amendment abolished slavery – except for prisoners.

This exception has now become an issue in this period of mass incarceration. The movie “Thirteenth” centers on this form of slavery, which is part of oppression of Blacks.

The Fourteenth Amendment said all persons born or naturalized in the United States were citizens (except for Native Americans who were not given citizenship until 1924), which meant that the former slaves were citizens.

This too has become part of the present national discussion as white racists including Trump want to get rid of this right because it makes children of undocumented migrants, largely Latinos, automatically citizens.

The Fifteenth Amendment said that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude.”

This failed to meet the demand of the most radical of the anti-slavery abolitionists, that all citizens have the right to vote.

By saying what states may not do on account of race, the Jim Crow states got around the amendment by the subterfuge of not suppressing the right to vote explicitly on account of race, but by poll taxes, many other provisions, as well as the terror of the Ku Klux Klan, that effectively squashed the right to vote for Blacks in those states.

The right of Blacks to vote is again under attack and this too is now part of the national discussion.

The explosion of Black Lives Matter this year has explicitly brought into the national debate not only police murders of Black people, but the fact that the whole history of the British colonies and then the United States, from 1619 when the first African was brought to North America into slavery up to the present day, is one of the oppression of African Americans in different forms.

Racism against Blacks also has extended to all people of color.

White supremacy is the ideology justifying racial oppression, and is behind many white workers identifying with the ruling class against their interests as workers.

As a result of the BLM movement, white supremacy is now being openly acknowledged and discussed.

One result of BLM was a series in the New York Times called “1619” that chronicled this history of 400 years of oppression of Blacks. Trump now says that this series “makes America look bad”. He proposed to withhold funds from school districts which have begun to use the NYT series in history lessons.

One major denial of democratic rights since the beginning of the United States was the national oppression of Blacks.

Another was the genocide of Native Americans and subsequent forms of their oppression up to the present day. Greater awareness of this fact has been another effect of Black Lives Matter.

There are other violations of democratic rights codified in the Constitution, from the power of the presidency compared to that of prime ministers in a parliamentary system, to the makeup of the Senate with each state having two senators with no regard to the population, and more that have been brought forward this year – the subject of another article.

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