On July 9, President Trump announced his nomination of Judge Brett M. Kavanaugh for the Supreme Court. Kavanaugh, 53-years-old, will take the place of Justice Anthony Kennedy, who is retiring at the end of the month. If confirmed, he will make the court, which has been shifting ideologically further to the right since 1970, solidly conservative for decades to come.
Judge Kavanaugh was born into a life of privilege, his father a millionaire lobbyist for the cosmetics industry and his mother a Maryland judge. He became a Republican at a young age. After graduating from Yale and clerking at the Supreme Court, he served under Independent Counsel Ken Starr during the Whitewater Controversy and Clinton-Lewinsky scandal.
Soon after, he worked as an associate counsel at the White House under President George W. Bush, later becoming White House staff secretary and marrying Bush’s personal secretary, Ashley Estes. Bush went on to nominate him to the U.S. Court of Appeals for the District of Columbia in 2005. Kavanaugh has served on the court since 2006, living in a $1.2 million dollar home in Chevy Chase Section 5, Maryland.
Liberal pundits are pleading with Justice Kennedy to postpone his retirement. Considered “one of the most powerful people in America,” Kennedy has been the swing vote on several important 5-4 decisions made by the conservative Roberts Court, since the retirement of Sandra Day O’Connor in 2006. He sided at times with the liberal justices on high profile cases involving abortion, gay rights, affirmative action and the death penalty.
However, Kennedy was no “moderate.” Appointed by President Reagan, Kennedy cast a conservative vote in most cases and in 75 percent of closely divided cases, during his three decades on the court. In the court’s most recent term, he voted for the Trump administration’s position in almost all major cases.
In Trump v. Hawaii, he sided with Trump’s racist travel ban, barring citizens of five Muslim-majority countries from entering the United States. In Janus v. AFSCME, he joined the conservative justices to deal the biggest blow to organized labor of the 21st century. Over his career, Kennedy’s swing votes in 5-4 rulings also gutted campaign finance regulations, upheld warrantless wiretapping, and weakened the Voting Rights Act.
Nevertheless, his replacement by Kavanaugh will spell further disaster for working and oppressed people. The court is likely to gradually weaken and overturn Roe v. Wade, allowing states to ban abortions, despite the fact that almost two-thirds of Americans support the landmark ruling.
In 2017, Kavanaugh issued a decision that, had it not been reversed on appeal, would have essentially allowed the government to hold a 17-year-old refugee woman hostage to stop her from accessing abortion. Further, in a speech he gave last year at the American Enterprise Institute, Kavanaugh commended the “opinions” of Justice Rehnquist, including his dissent in Roe.
If Kavanaugh is confirmed, the court will also be more likely to uphold capital punishment and solitary confinement, weaken anti-discrimination laws, roll back LGBTQ rights, and end affirmative action in college admissions. It will shift even further right on issues such as the environment, civil rights, fair housing, voting rights and disability rights, as well.
Republicans are confident that Kavanaugh will be confirmed by the time the Supreme Court’s next term begins on October 1. The votes they need will most likely come from the ten Democratic senators running for re-election in states that Donald Trump won in 2016.
Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, and Joe Donnelly of Indiana are three Democrats who will probably vote to confirm Kavanaugh once it reaches the Senate. Last year, these senators voted to confirm Justice Neil Gorsuch when he was nominated by Trump. They also voted to confirm most of Trump’s cabinet nominees and sided with Trump on most legislation, including anti-“sanctuary cities” and anti-abortion bills.
Democrats on the Senate Judiciary Committee will use the moment to grandstand and position themselves as potential 2020 presidential contenders, but ultimately, members of their own party are expected to help confirm Kavanaugh.
Meanwhile, special interest groups such as the Judicial Crisis Network, a conservative group linked to the Federalist Society, and Demand Justice, a liberal group, will spend millions of dollars from anonymous donors on advertisements for and against the confirmation.
Liberals claim that the legitimacy of the nation’s highest court is eroding. The truth, however, is that the Supreme Court has always been illegitimate — an institution designed to defend private property and the state above all else. The gradual transformation of the court has only served to make this clear.
As the Party for Socialism and Liberation has written, “a look at history shows the Supreme Court to be one of the most consistently reactionary institutions of the United States …
“The framers of the Constitution, all of whom functioned as the political representatives of white landowners, slave owners and merchants, wanted to establish a political form of government that best defended the private property of the elite in society …
“The purpose of the Supreme Court is usually described in terms of the ‘checks and balances’ framework of the U.S. political system. Its powers prevent Congress from passing ‘unconstitutional’ laws and limit the president’s ability to carry out those laws in a way contrary to the Constitution.
“In reality, the Supreme Court has been used to limit the democratic process in the interests of the ruling class. It ensures, for example, that no democratically elected Congress could ever pass a law that infringes on the right of the rich to own their wealth.”
Now that the liberal illusion of the Supreme Court as a progressive and neutral arbiter of justice is dying, and its role as an undemocratic, oppressive body becoming plain to see, it is an important time to take to the streets to strengthen and expand the mass movements.
The Civil Rights, Black liberation, women’s and LGBTQ movements are what forced the Supreme Court to rule in favor of the people in cases like Brown v. Board of Education, Roe v. Wade, and Obergefell v. Hodges. Rights were never handed down; the masses grabbed them from the hands of the ruling class and its judicial servants through popular resistance.
Ultimately, all the intersecting causes of working and oppressed people must come together under the banner of socialism and wipe away the Supreme Court and the dictatorship of the rich. Only then will the ongoing erosion of the people’s rights be reversed, and a foundation for actual progress and democracy be laid.