In January, the Republican Party will assume control of the entire federal government. The Supreme Court, currently at a four-to-four impasse between conservatives and liberals, will soon tilt in the conservatives’ favor.
Donald Trump’s judiciary will not reverse the erosion of civil liberties, the mass deportation of undocumented immigrants, or the militarization of police forces. His potential nominees to the Supreme Court and the federal judiciary will not be friendly to what’s left of the welfare state, the regulatory state, or the anti-discrimination state. Federal law and the federal government will be even more dramatically weaponized against people of color, the poor, and the exploited — much as American power has already been weaponized against millions around the world.
But although Trump’s judiciary will undoubtedly be dangerous, it would be a mistake to assume their decisions will differ from existing conservative jurisprudence — or that mounting an opposition primarily through the courts will prove an effective strategy.
Trump will be working with an ascendant Republican Party — in the likely face of only token resistance by Senate Democrats — to staff the federal judiciary. His judicial nominees, like his policies, will almost assuredly reflect the GOP’s ever-rightward-moving ideology. They will be enthusiastic junior partners in the crusade to push through a reactionary transformation of the American polity.
Notable Supreme Court decisions from the Obama years now appear less durable than ever, and changes to constitutional law that conservatives have pursued for decades are closer to becoming reality. The second life afforded to public-sector collective bargaining rights in the Court’s recent Friedrichs decision will be short-lived (assuming a similar challenge comes before a fully staffed, conservative-majority Court). The staying power of earlier decisions favoring abortion rights and same-sex marriage will be frighteningly uncertain.
This turn of events is especially upsetting for liberals, who have looked to the Supreme Court as a guarantor of individual liberties — and as a brake on reactionary policy-making — since the heady days of the Warren Court in the 1950s and ’60s.
Under Chief Justice Earl Warren, the Court’s liberals achieved limited (but real) victories against state-sanctioned discrimination, the power of police, and restrictions on civil liberties.
They upended decades-old constructions of the Bill of Rights and the Fourteenth Amendment, transforming and expanding understandings about who counted as a citizen, and the kinds of protections from state power to which citizens were entitled. For the first time in American history, constitutional jurisprudence appeared to be an effective tool for movements seeking reformist (if not emancipatory) ends. Previously seen by liberals as an antidemocratic obstacle to progressive policy aims, the Court’s robed arbiters were now celebrated as able invalidators of conservative legislation.
But the experience of the Warren Court was exceptional. It occurred during a specific historical moment, when wages were rising, the capitalist class was comparatively constrained, and public opinion was more easily mobilized in favor of social-democratic reformism. Aware of the social movement pressures being brought to bear on political institutions, the Court adopted a conscious strategy of lending juridical support to struggles for reform and recognition.
Yet the Court, like the law itself, is an institution tasked with performing conservative functions. Even under Warren, the institutional boundaries it policed remained those laid out in the Constitution — a document consciously designed to insulate ruling regimes from popular demands and protect the propertied from the redistributionist impulses of the masses. Consequently, the Court never stopped being a target for those who wished to resist the expansion of democratic empowerment and equality.
Liberals, fixated on the halcyon days of the Warren Court even after its namesake had departed, mistakenly concluded that constitutional law could replace mass politics and collective action. They hailed Court decisions that failed to create the constituencies needed to support the changes from on high. To be sure, the dynamics of the relationship between public opinion and the Court are murky and by no means direct. But the experience of the Warren Court demonstrated that constitutional law is, at best, only a modestly effective tool for progressive change — and only when social forces are favorably arrayed.
Movement conservatives were quicker in grasping the lessons of the Warren Court than liberals. The conservative legal movement, an important arm of the reactionary formations that conquered the Republican Party, arose out of right-wing frustration with the Warren Court’s work in fields like civil liberties, anti-discrimination law, and criminal procedure. It focused on contesting liberal jurisprudence and patiently installing conservative jurists on the nation’s highest courts.
Over the last few decades, the movement has been enormously successful. It abetted the rise of “originalist” jurisprudence in the 1980s, winning its acceptance in courts and the legal academy. It succeeded in transforming constitutional common sense, such that “states’ rights” and hostility to federal regulation are now considered default positions in much of the judiciary and the legal academy. And decades of conservative resistance in and around the courts have effectively reversed the Warren Court’s push to strengthen the rights of criminal suspects and buttress the Fourth Amendment.
How did they do it? Through networking, organizing, and capacity-building.
The Court’s jurisprudential support for an interventionist welfare state evaporated when the conservative movement won national power and began staffing the federal judiciary with right-wing jurists. Particularly under the leadership of Chief Justice William Rehnquist (1986–2005), the Court curtailed the federal government’s ability to intervene in the economy. Rehnquist’s successor, John Roberts, has overseen a subtle transformation in conceptions of citizenship — affording corporations speech rights and dismissing the notion that the federal government has an appropriate interest in protecting its citizens’ voting rights.
Trump’s appointees will traverse the same conservative path.
In the coming years, citizenship will be juridically restricted and narrowed. The Fourteenth Amendment’s stark and uncompromising language about the equal rights and privileges of citizenship — which conservative justices have never fully accepted — may be effaced in favor of tiered or hierarchical systems of citizenship. Members of Trump’s camp have already called for revoking citizenship for a variety of imagined offenses. The Court’s endorsement of explicitly racist and xenophobic citizenship legislation might not be far behind.
We can also expect the Court to continue refashioning the First Amendment into an instrument that shields capital from regulation. The Court will likely roll back reproductive rights and anti-discrimination statutes at the same time it lends its imprimatur to draconian legislation on counter-terrorism, the detention of foreign nationals, and border control. Legal restrictions on environmental degradation, fragile enough to begin with, are even more vulnerable. And the rights of workers to organize, unionize, and strike will be under all-out assault. Conservative justices may well rule that a federal “right-to-work” statute passes constitutional muster.
When Trump fills Antonin Scalia’s vacant Supreme Court seat, constitutional law will be firmly in the hands of some of the country’s most vehement opponents of social progress. And they will seek to entrench their reactionary program in the Court’s body of decisions so it endures far beyond Trump’s tenure.
What, then, should our response be? We should be under no illusion that resistance in the courts, however necessary, is sufficient. In fact, the decisions the Court hands down in the years to come ought to serve as definitive proof that social change cannot be pursued through litigation alone.
The liberal response will likely be to plead with politicians to nominate and confirm the “right” judges and justices. They will (quite correctly) excoriate conservative jurists for restoring the Constitution’s vision of a vertical structure of social domination upheld by a fragmented, antidemocratic set of political institutions. But such a response will be grossly inadequate. The first line of struggle will not be in the courts but in the daily lived realities of people oppressed by — and resisting through all available political and social means — the hegemony of the Right.
Indeed, one of the contradictions of the coming period will be that the task of defending the virtues commonly associated with modern liberal democracy — antiracism, civil liberties, religious pluralism, sexual freedom — must take place through radical action in the streets.
Protests are already underway that seek to deny a racist, misogynistic, xenophobic president-elect the tiniest scrap of respect, cooperation, or comity. Those who are reluctant to join such protests should remember that Trump is poised to strengthen the Court’s role as a bastion of reaction. Any attempts to anchor the Republicans’ agenda in such a manifestly undemocratic institution should be challenged through political contestation.
Like any document, the Constitution’s meaning can be constructed in many different ways. But such interpretive flexibility can only be carried so far. Constitutional law is a language spoken most naturally in a conservative register, and Trump’s judicial branch will undoubtedly communicate in a reactionary dialect.
He campaigned on a transparently racist law-and-order platform and gives every indication that he will pursue an agenda cribbed from the Heritage Foundation’s white papers and the Federalist Society’s briefs. The courts are, and will continue to be, a cudgel in the hands of our enemies.
Wherever possible, we can and should oppose Trump and the Republicans in the courts. But quixotic dreams of a latter-day Warren Court shouldn’t be allowed to cloud our vision. Our ultimate power lies not in jurisprudential formulas and elaborate legal doctrines but in politics.