We are witnessing an astounding attack on democracy by the five male right-wing majority of the Supreme Court — “black robed rulers,” Supreme Court Justice Elena Kagan called them, “overruling citizens’ choices” in a series of 5-4 decisions.
These are right-wing lawless judges ignoring the laws and will of our elected representatives and trampling the dictates of legal precedent. Their arrogance seems to have no bounds. The damage that they have already done to our democracy is profound.
The most recent 5-4 decision of the Supreme Court was the case of Janus v. AFSCME. The majority, throwing out the laws of state legislatures and legal precedent, ruled that state legislatures cannot authorize public employee unions to collect a fee for the cost of bargaining and representing workers who benefit from the negotiations but don’t want to join the union.
Protecting freeloaders seems bizarre, but the court’s ideologues are interested less in upholding the law and far more in weakening the workers’ voice as represented by unions. Now in states across the nation, right-wing corporate funded groups will launch campaigns to get workers to quit their unions in the hope of dramatically weakening the voice of teachers, sanitation workers, police officers and firefighters.
The decision is but one of many undermining our democracy. A right-wing majority gutted the Voting Rights Act in Shelby v. Holder. This term, the five upheld Texas redistricting that lower courts found discriminated against minority voters. In Citizens United, five conservative judges — again ignoring law and precedent — held that corporations could not be prohibited from spending money in elections. Somehow corporations, they suggested, had the same political rights as citizens.
The gang of five has also systematically favored corporate rights over women’s rights, gay rights, consumer and environmental protection. That the Congress — elected by the people — passes laws expressing different values doesn’t deter them.
They have elevated themselves as “black robed rulers,” legislating their own choices from the bench. Now Justice Anthony Kennedy has chosen to resign, apparently timing his announcement so President Trump can use the fight over his successor to rouse his base in the upcoming elections. (That suggestion gains credibility with the revelation that Kennedy’s son, working at Deutsche Bank, lent Donald Trump and his operations nearly a billion — with a b — billion dollars at a time when U.S. banks wouldn’t go near him because of his record of bankruptcies and scams.)
Kennedy gained a reputation as a “moderate” because of his votes on abortion and on gay marriage, but he has been a leader in the assault on democracy and the elevation of corporate rights over worker rights. Now, his resignation is timed so that Trump can name, and the Republican majority in the Senate confirm, a younger right-wing zealot to carry on the assault on democracy. In the Civil Rights movement, we looked to the Supreme Court to enforce the Constitution against the Jim Crow laws of the apartheid South.
Now we must take back the Congress and the statehouses and rally the democratic bodies against the usurpations of the ideological majority of the court. Only if the pressure is constant will one or more of the Justices realize the dangers and errors of their course.
The pushback can start with our election laws and come from the bottom up. Localities and states should be passing laws to make voter registration automatic, to extend the days for voting, to expand the franchise, and rollback restrictions on voting.
Districts and states can pass laws matching small donations three or four to one, to encourage independence from the corruptions of big money. Localities might pass legislation demanding that candidates get their “oats and their votes” from the district itself – limiting funds to those provided by those who live in the district.
Nonpartisan citizen panels can put an end to partisan gerrymandering, ensuring the voters pick their representatives rather than politicians designing districts to pick their voters. It is long past time that we recognize what the right-wing Supreme Court gang of five is doing.
They claim to be simply enforcing the laws, but they overturn legislation and ignore legal precedent. They are lawless in the service of the rich and the corporations. They are expanding the corrupting rule of big money even as they limit the rights of workers, consumers, women and people of color.
George Wallace stood in the schoolhouse door defying the dictates of the Constitution and the unanimous decision of the Supreme Court. Now a shameless majority of five stands in that door against the laws of the Congress and states, eroding the democracy they are sworn to protect.
Just as it took a movement to challenge George Wallace and segregation, it will take a movement to reclaim our democracy from these “black robed rulers.” Progressive activists should demand that every Democratic candidate for elected office at the local, state or national level make empowering workers a central part of his or her platform.
They should demand support for measures that will make it easier for workers to organize and crack down on labor law violations. Companies that violate basic worker rights should be penalized in public procurement decisions. At the same time, progressives need to expose the reality that the right wing gang of five in the Supreme Court is trampling the will of the people and overturning established precedents to serve the interests of the plutocrats and the right.
These “black robed rulers” are legislating from the bench, scorning even an effort to find common ground with their own colleagues. In a time of deep polarization, the lawless majority of court has chosen to stand with the powerful few against the vast majority. That too will not stand.