For the moment, the labor movement may have dodged a bullet. The Supreme Court did not do what many had feared it would do in the case of the cement drivers’ strike at Glacier Northwest: overrule longstanding precedent that employers generally cannot sue unions in state court over strikes covered by the National Labor Relations Act. Photo: Teamsters Local 174
The U.S. Supreme Court’s decision in Glacier Northwest v. Teamsters Local 174 is outrageous—valuing property over workers’ rights. But it could have been much worse.
Unions still have the right to strike. Employers still can’t generally sue unions in state court for losses caused by strikes. But the decision does open the door to whittling away those rights more in the future.
The practical impact of the Court’s decision is that employers will be suing unions more often for alleged property damage caused by strikes—and that therefore unions (and their attorneys) are likely to be more cautious.
But the Court did not do what many had feared it would do in this case: overrule longstanding precedent that employers generally cannot sue unions in state court over activities—like strikes—covered by the National Labor Relations Act.
Instead, it found that this case fell under an already-existing exception for intentional damage to employer property or failure to take reasonable precautions to prevent such damage.
Workers and unions are right to be furious at this ruling. But we should be careful not to sensationalize or overstate it—which could do more damage to the right to strike than the ruling itself does, by making workers scared to exercise it.
“American workers must remember that their right to strike has not been taken away,” said Teamsters President Sean O’Brien in response to the ruling. “All workers, union and nonunion alike, will forever have the right to withhold their labor.” His statement went on:
The Teamsters will strike any employer, when necessary, no matter their size or the depth of their pockets. Unions will never be broken by this Court or any other.
Today’s shameful ruling is simply one more reminder that the American people cannot rely on their government or their courts to protect them. They cannot rely on their employers.
We must rely on each other. We must engage in organized, collective action. We can only rely on the protections inherent in the power of our unions.
The question the Supreme Court considered in the Glacier case was whether the employer could sue Teamsters Local 174 in state court over the allegedly intentional destruction of the company’s concrete when striking drivers who had set out with deliveries of ready-mix concrete returned their loaded trucks, requiring the company to dispose of it before it set.
Prior court cases say that an employer can’t sue a union in state court over activity arguably covered by the National Labor Relations Act. Instead, the employer has to go to the National Labor Relations Board.
There is an exception, though, if striking employees intentionally damage employer property or don’t take reasonable precautions to protect employer property. For example, in one case, employees walked out of a foundry when molten iron was ready to be poured—which the court found could have caused substantial property damage.
This exception is narrow: property damage that is intentional or caused by a lack of reasonable precautions. It doesn’t include things like economic losses due to temporary closure of a store or factory, strawberries rotting in the field because farmworkers are on strike, or milk going sour in the fridge because baristas have walked out.
The trial court in Washington state dismissed Glacier’s claim because it found that the Teamsters’ strike action was arguably protected under the National Labor Relations Act. The Washington State Supreme Court affirmed.
The United States Supreme Court has now overruled that decision and sent the case back to the trial court, because it says that—assuming the facts alleged in the employer’s complaint are true—the union did not take reasonable precautions to prevent concrete from hardening.
The Supreme Court did not order the trial court to decide against the union, just that the case be allowed to proceed. And it left open the possibility for the state courts to dismiss the case again, depending on what the NLRB does about a pending unfair labor practices complaint against Glacier related to the same strike.
The NLRB issued its complaint against Glacier after the Washington State Supreme Court affirmed dismissal of the state court case. The U.S. Supreme Court explicitly did not rule on whether the lawsuit would have been preempted if the NLRB had issued the complaint earlier.
Depending on how future cases play out in state and federal court, Glacier could end up being a relatively small change to labor law or another in an escalating series of court decisions chipping away at the right to strike.
Already the laws are stacked against powerful strikes. Employers routinely obtain injunctions limiting where and how many strikers can picket; economic strikers can be permanently replaced; secondary targets often can’t be picketed; and so on.
Comparisons to other areas of law, like abortion rights, are useful. Roe v. Wade was not overturned in one night. It took nearly 50 years of legal battles in which courts questioned and undermined Roe v. Wade, until a conservative majority finally overruled it.
Similarly, right-wing attorneys and judges will try to build on Glacier to expand employers’ ability to sue unions. But for the moment, the labor movement may have dodged a bullet.
Gerald Goff, whose case is before the Supreme Court, sits in a pew in a church after an interview with the AP on March 8, 2023. The Supreme Court ruling in his case could give unprecedented power to right wing Christian nationalists, including the power to nullify union contracts under the false claim that they violate religious liberty. | Carolyn Kaster/AP
WASHINGTON –On April 18, the Supreme Court faced a recurring issue: How much must employers bend the rules for employees who, based on their religious beliefs, demand special rights?
In 2012, Gerald Groff took a post-office job as a Rural Carrier Associate (“RCA”). The job required that he substitute for career carriers as needed, including on Sundays and holidays. But Groff, an Evangelical Christian, believes his religion forbids him to work on Sundays.
When Groff started work, the post office closed on Sundays. But in 2013, the Postal Service (“USPS”) agreed with Amazon.com to start delivering packages on Sundays. Then, in 2016, in a contract with the National Rural Letter Carriers Association, the Postal Service agreed RCAs would have to work, as needed, on Sundays, at least during “peak season.”
Groff still refused to work on Sundays.
For a time, the local postmaster found other carriers for Sundays. Some carriers, themselves churchgoers, had to work 15-hour shifts. Sometimes the postmaster himself delivered the mail. During one period, one carrier had to deliver mail every single Sunday.
In rural areas, USPS suffers from chronic understaffing. Among the small workforce at Groff’s post office, resentment grew. One carrier quit. Another transferred. A third filed a grievance.
Finally, realizing his insistence on never working on Sundays would eventually get him fired, Groff quit and sued Postmaster General Louis DeJoy.
The 1964 Civil Rights Act protects a worker’s religious “practice” unless the employer can show that to “accommodate” that practice would cause “undue hardship on the conduct of the employer’s business.”
In 1977, in Trans World Airlines v. Hardison, the Supreme Court considered a similar case of an employee’s refusal to work on his weekly sabbath. The court ruled employers need not “accommodate” an employee’s religious practice if doing so would cost more than “de minimis,” a legal term that means “trifling” or “trivial.”
In a footnote, the court observed that yielding to Hardison’s demands would either result in “substantial additional costs” or violate other TWA employees’ seniority rights under a collective-bargaining agreement.
The court, it said, would not interpret a law, designed to eliminate employment discrimination, to require employers to “discriminate against some employees” on “the basis of their religion,” just so other employees could practice theirs.
Lower federal courts ruled against Groff. The Supreme Court took the case. It wanted to know,
(1) whether it should reconsider its 1977 interpretation of “undue hardship” to mean “more than de minimis,” and
(2) whether employers can meet that test by showing that to “accommodate” an employee’s religious practice would burden coworkers, but not necessarily the business itself.
Aaron Streett, with the First Liberty Institute, a prominent rightwing Christian lawyers’ group, argued for Groff. He urged the justices to abandon the “more than de minimis” standard, claiming it’s confused lower courts.
Instead, employers who want to avoid accommodating employees’ religious practices should have to show accommodation would mean “significant difficulty or expense.” That standard is in other federal civil-rights laws, and both New York and California courts apply it under their civil-rights laws.
Even the Supreme Court, in the 1977 case, used “substantial additional costs,” a point Justice Brett Kavanaugh stressed.
Regarding the court’s second question, whether–whatever the test–employers can satisfy it by showing that to “accommodate” an employee’s religious practice would burden coworkers, Streett focused on the law’s text.
The 1964 Civil Rights Act requires that to escape liability, employers show “undue hardship on the conduct of the employer’s business.” Burdens on coworkers, Streett insisted, should matter only if they constitute an “undue hardship” on the business.
Responding to this argument, the AFL-CIO’s friend-of-the-court brief notes the 1964 Civil Rights Act requires employers to show “undue hardship” not on its business, but on the “conduct” of its business.
That includes having a religion-neutral Sunday rotation for mail carriers. The AFL-CIO also cited the “strong national labor policy” in favor of upholding collective-bargaining agreements, like USPS’s agreement with the Rural Letter Carriers.
Streett responded that completely protecting collective-bargaining agreements could allow employers and unions to negotiate away protection for employees’ religious practices.
Solicitor General Elizabeth Prelogar, representing the Postal Service, had an answer. Some collective-bargaining provisions just codify employer rules. But others fix employees’ rights as between themselves. Workers’ expectations, even labor peace, depend on those provisions. Overturning them would indeed impose an “undue hardship” on an employer.
In another brief, the American Postal Workers Union echoes a point the court itself made in 1977. Groff demands a special, religious preference, to the disadvantage of his coworkers who observe a different faith or no faith, it said.
Any interpretation of the Civil Rights Act to let Groff force his coworkers to give up their weekends so he can practice his faith would itself violate those coworkers’ rights to free exercise of religion. “A day off is not the special privilege of the religious.”
Both Chief Justice John Roberts and Justice Samuel Alito questioned that reasoning. For them, the Constitution no longer requires neutrality between religious people and nonbelievers.
Thanks in large part to those two justices, the current court has approved, even promoted, discrimination in favor of religion. They see no problem with forcing employers to provide special advantages to people who profess a religious belief.
That assertion troubled Justice Kavanaugh. He wondered if it meant that only Christians with the “right” religious beliefs can get Sundays off, but not those whose faith permits working at least part of the day on Sunday.
On whether the court should reconsider the 1977 Hardison “more than de minimis” test, Prelogar urged the court to follow its 46-year-old precedent, applied nearly a half-century by lower courts. Any new standard, she argued, would destabilize this area of the law.
Groff’s case presents an even stronger argument for following precedent than did last year’s abortion case, Dobbs v. Jackson Women’s Health Organization. As Justice Elena Kagan pointed out, respect for prior decisions should peak with cases of interpreting statutes. Compared with a constitutional ruling, Congress can relatively easily change a statute.
Justice Sonia Sotomayor added Congress has done exactly that when it disagreed with the court’s interpretation of other statutes. Though Congress has repeatedly amended the 1964 Civil Rights Act, it has never modified the interpretation of “undue hardship” to mean “more than de minimis,” she said.
Besides, added Prelogar, lower courts, applying the “more than de minimis” test, have given religious workers “meaningful protection,” often denying employer claims of “undue hardship.” Nevertheless, in Groff’s case, the lower courts would find “undue hardship” under any proposed test.
Finally, Prelogar conceded the 1977 decision “interchangeably” used “substantial” and “more than de minimis.” But then, Justices Neil Gorsuch and Amy Coney Barrett proposed, the court should clarify that employers must show “substantial” costs, to prevent future courts from using the literal meaning of “de minimis” as “trivial” or “trifling.”
A decision in Groff v. DeJoy could have implications well beyond the claims of one evangelical Christian to take off Sundays. Already, a nurse has sued CVS, claiming, because of her religion, her employer can’t force her to prescribe certain contraceptives.
A ruling for Groff that forces employees to bear the costs of their coworkers’ religious exercise could also make individual workers compete for scarce employer solicitude, threaten labor agreements, dissolve workplace solidarity, and disempower workers.
A decision in Groff’s case is expected by early summer.
David Sobelsohn is the Supreme Court correspondent for Press Associates Inc. (PAI), the union news service in Washington D.C. Sobelsohn’s career has combined organizing and politics with teaching and scholarship.
Justice Clarence Thomas, in clear violation of U.S. law, has failed to disclose decades of questionable income. The Justice Department and the Senate Judiciary Committee must now move on the case. | J. Scott Applewhite/AP
WASHINGTON—More revelations about the corporate and right-wing ties of Supreme Court Justice Clarence Thomas, his lobbyist wife Ginni Thomas and his failure for almost two decades to disclose even minimal information about both have raised pressure on Attorney General Merrick Garland to name a special counsel and act in the case and on Senate Democratic Judiciary Committee Chair Dick Durbin to investigate all the justices’ ethics—with an eye towards writing an ethics code for the High Court since the jurists won’t do so.
It’s the only path to solving the problem since it is obvious that the High Court won’t fix itself. Chief Justice Roberts has obviously known for years about every single illegal act and ethics transgression committed by Thomas but he has done nothing. Republicans in control of the House would jump all over a case like this if it were Democratic appointed justices involved in scandal but since it is Thomas, a staunch right winger, they will also do nothing. This leaves it up to the Justice Department and Democratic Sen. Dick Durbin of Illinois to get the ball rolling.
Much has been said about the High Court having no ethics code with which to govern itself. This cannot be used as an excuse for inaction by the Justice Department and Senate Dems because the actions of Justice Thomas, particularly his egregious lies on financial transaction forms, are illegal — including checking “no” earnings when he and his wife brought in $700,000 in income from an extreme right-wing think tank. Beyond violating ethics rules that apply to all other judges and lawmakers, Thomas is in violation of a number of U.S. laws that apply to everyone.
The revelations about Thomas also throw yet another spotlight on the ways capitalists can secretly influence judges on the nation’s highest court—even if those moguls don’t specifically have cases pending there.
The latest disclosure involving Ginni Thomas was the revelation, first reported by Newsweek last September but repeated in news stories on April 17, that she earned $683,589 from the right-wing Heritage Foundation in 2003-07—and that Thomas didn’t even disclose her employment there, as required.
Meanwhile, Thomas himself collected $270,000-$750,000 in recent years from a real estate company, the Ginger Limited Partnership, which went defunct in 2006, the Washington Post reported. Ginni Thomas’s relatives set up Ginger and a successor, Ginger Holdings, which made the payments.
Jealous of private corporate lawyers
Thomas, jealous of private corporate lawyers who make millions of dollars more than his $300,000 salary paid by taxpayers, never listed either Ginger firm. He apparently felt he could go on forever this way, making up for the gap between his salary and what rich corporate lawyers make. He even found a way to enjoy trips on private jets and yachts, much the way many millionaire lawyers do.
Good government groups say his non-disclosure violates specific laws including the post-Watergate Ethics In Government Act. They demand Garland name a special counsel to investigate, and that the Senate Judiciary Committee hold hearings, then write an ethics code for the court.
Thomas has since “amended” his financial disclosures. The forms only ask justices to disclose ranges of income, not exact figures, except for book royalties and speaking fees.
Left unnoticed by the corporate media in all the brouhaha over his disclosure, or lack of it: A giant conflict of interest by the Thomases, given at least the appearance, if not the actuality of the justice being unduly influenced by the corporate class and its radical right allies.
The key point is whether federal officials, judges and justices included, should take any outside earned income from anyone at all, and especially from anyone—such as the corporate class—that always has business before the High Court.
“When a justice brazenly violates the law, he cannot be trusted to uphold that law,” said Rakim Brooks, president of the Alliance For Justice, referring to the 1978 ethics law. The Alliance noted in the court’s 2021-22 term, ending last July, Thomas sided with the corporate class on 72% of its cases. It did not list the percentages for the other justices.
“The rule of law is our most sacred treasure and Justice Thomas can no longer be trusted to protect it,” Brooks continued. “He has abused the power of his office for personal gain and given the American people more than reasonable apprehensions about whether he can be impartial.
“Justice Thomas should resign.”
If he doesn’t resign, to defend the Constitution Congress must “hold robust hearings to determine just how far this rot goes and how badly it has compromised the fair administration of justice.” That Brooks statement covers not just Thomas, but all the justices—and lower courts, too.
“The Senate cannot let this extraordinary display of corruption and lawbreaking go unanswered,” added Demand Justice Executive Director Brian Fallon. “Senate Democrats cannot force Thomas to resign or give him the impeachment trial he clearly deserves, but they can hold hearings to further expose Justice Thomas’s apparent lawbreaking and the Republican justices’ deep ties to far-right donors.
“As long as we are stuck with a Supreme Court made up of corrupt ideologues in the pocket of far-right donors, the American people deserve to know the truth.”
Not the only one
Thomas isn’t the only justice to make money outside the court. Virtually all of them do, but the money sources for the others are book royalties, teaching in law schools during the court’s summer recess, or giving speeches. One speech, though, by Justice Amy Coney Barrett, raised ethical eyebrows.
She spoke at an institution tied to Senate Republican Leader Mitch McConnell of Kentucky, who introduced her—and who has led the Republican fight at the Supreme Court to obliterate campaign finance laws and regulations. The McConnell Institute also paid for her travel and accommodations.
As for the others, Republican-named Justice Neil Gorsuch earned $26,541.74 for teaching courses at the George Mason University Law School, well-known as an incubator of right-wing lawyers. So did Republican-named Justice Brett Kavanaugh ($25,541.66). Book royalties produced larger sums for Barrett ($425,000), Gorsuch ($250,308.44), and Democratic-named Sonia Sotomayor ($115,593.39).
The financial disclosure forms only mandate justices disclose the source, but not the amount, of spouses’ incomes, much less clients of the spouses. Thomas didn’t even list Heritage as a source for his spouse. In amending the forms, Thomas listed Ginni Thomas as CEO of her own company, Liberty Consulting, but not how much she made or her clients. She’s bragged to right-wing audiences that she and her firm served as a conduit between right-wing organizations and the Republican Donald Trump regime.
The forms also mandate justices disclose gifts, such as meetings and travel, unless they’re from close friends or close relatives. Justice Thomas used that loophole to keep under wraps millions of dollars worth of yacht trips and on a private jet from Republican right-wing big giver Harlan Crow. But Pro Publica discovered Crow’s companies owned the yacht and the jet. Both Thomases went on the trips.
It also discovered Crow paid above market price for Thomas’s childhood home in Georgia, where his mother, 94, still lives. Crow plans to turn it into a museum honoring Thomas.
All this prompted demands that Garland name a special counsel in the Thomas case and that the Senate Judiciary Committee hold hearings on the justices’ ethics, and write a strong ethics code. Chairman Dick Durbin, D-Ill., promises hearings, but cooperation from the justices may be another matter.
He’s demanded before—almost 10 years ago—the court write a strong code for itself. Chief Justice John Roberts didn’t reply to the panel’s letter. Later, the Chief Justice left Justice Elena Kagan with egg on her face when she predicted four years ago he’d soon be forthcoming with a code, and he never did.
Durbin may have one more anti-Thomas piece of evidence to add to the case. Former Labor Secretary Robert Reich, now an economics and political science professor at the University of California at Berkeley, tweeted on April 17 that Thomas wanted, in 2010, to kill all High Court financial disclosures.
“Clarence Thomas not ONLY accepted free vacations and sold property without disclosing it,” Reich’s tweet reads. “THOMAS ALSO tried to KILL SCOTUS disclosure laws in his concurring opinion on the Citizens United decision.” SCOTUS is the nickname for “Supreme Court of the United States.”
In Citizens United, the Republican-named majority triumphed 5-4 in a case—backed by Republicans who were led by McConnell—to basically destroy all campaign finance limits for corporations, leaving only disclosures. Several years later that same Republican majority ruled corporations could keep their donors secret by using so-called “non-profit” groups and “independent expenditure” committees as conduits for their tsunamis of campaign cash. Which they have, in billions of dollars, ever since.
“Thomas insisted that SCOTUS should, ‘invalidate mandatory disclosure and reporting requirements,’” Reich wrote. “This opens Thomas up to ADDITIONAL scrutiny for DIRECT and PERSONAL conflict of interest. His actions drip with corruption.”
Mark Gruenberg is head of the Washington, D.C., bureau of People’s World. He is also the editor of the union news service Press Associates Inc. (PAI). Known for his reporting skills, sharp wit, and voluminous knowledge of history, Mark is a compassionate interviewer but a holy terror when going after big corporations and their billionaire owners.El galardonado periodista Mark Gruenberg es el director de la oficina de People’s World en Washington, D.C. También es editor del servicio de noticias sindicales Press Associates Inc. (PAI).
John Wojcik is Editor-in-Chief of People’s World. He joined the staff as Labor Editor in May 2007 after working as a union meat cutter in northern New Jersey. There, he served as a shop steward and a member of a UFCW contract negotiating committee. In the 1970s and ’80s, he was a political action reporter for the Daily World, this newspaper’s predecessor, and was active in electoral politics in Brooklyn, New York.
WASHINGTON—Key lawmakers on worker rights’ issues—Senate Labor Committee Chairman Bernie Sanders, Ind-Vt., and Rep. Bobby Scott, D-Va.—introduced the newest version of the Protect the Right to Organize (PRO) Act on Feb. 28.
Senate Majority Leader Charles Schumer, D-N.Y., vowed to push it on the Senate floor once Sanders’s committee finishes its hearings and work on the measure.
“Joining a union should be a right, not a fight,” said Scott, alluding to the roadblocks bosses erect against organizing drives, almost all of which the PRO Act would outlaw.
But even with one House Republican co-sponsor, Pennsylvanian Brian Fitzpatrick, and more than 200 Democrats signed on, it faces an uphill battle in that GOP-run chamber.
Notorious union hater Rep. Virginia Foxx, R-N.C., denounced it as written by “Big Labor.” She vowed “the demands of Union Bosses will stop” in her House Education and the Workforce Committee. Both phrases are Republican anti-worker staples. And speakers at the kickoff event warned of intense loathing, backed by money, from the corporate class.
That didn’t faze Scott, Sanders, Schumer, or AFL-CIO President Liz Schumer, who spoke at what was officially a press conference but sounded more like a pro-worker rally. Listening to the predicted reaction, Shuler stated, “It tells me they’re scared of us. They can’t stand a world where workers get a fair share of the profits” of their labor.
“The American people are sick and tired of unprecedented corporate greed and union-busting” added Sanders, whose committee, with a one-vote Democratic majority, is expected to approve the bill. “The average CEO makes 400 times what the average worker makes.” The PRO Act, he predicted, is the most-effective way to reduce that gap.
By contrast with the PRO Act, given today’s weak labor laws and corporate hate, “taking a risk” to unionize “is an act of courage,” explained Shuler. “It shouldn’t be.”
“But if you look at Starbucks, at Amazon, and at Tesla, what you see is threats and retaliation,” she said.
All of those would be illegal, hit with heavy fines—$50,000 for a first offense, $100,000 for subsequent offenses, plus awarding illegally fired workers full back pay plus expenses, and giving them their jobs back as soon as they get a favorable National Labor Relations Board (NLRB) ruling.
Making organizing and unionizing easier is especially vital in so-called right-to-work states, such as Oklahoma, said Shuler. A Communications Worker from Oklahoma City told the press conference about bosses’ tactics and lies during an organizing drive at an Apple store there. This version of the PRO Act would repeal the 1947 Republican-engineered legal basis for right-to-work laws, the Taft-Hartley Act.
Many speakers described the benefits of unionization, not just for workers in terms of higher wages, better working conditions, safer workplaces, and voices on the job, but for the economy as a whole.
Citing her predecessor, the late AFL-CIO President Richard Trumka—whose name is attached to the PRO Act—Shuler said he “knew we could not build an equitable economy without changing the law.”
The legislation drew an enthusiastic reception from the crowd of Service Employees, Communications Workers, and United Food and Commercial Workers at a press conference turned rally. The Republicans, as Foxx’s statement shows, are another matter.
Besides overriding right-to-work laws and imposing higher fines, the new version of the PRO Act would mandate instant recognition and a quick start, within days, to bargaining when the union wins a National Labor Relations Board recognition election. Bosses who stall on reaching a first contract would be forced into mandatory mediation and arbitration.
It also says if the union turns in election cards from a verified majority of workers before the vote, but loses anyway after bosses’ anti-union campaigns, the cards control the outcome. And it outlaws a key weapon bosses use in economic strikes, hiring scabs.
Any illegally fired worker would have an immediate right to return to her job if the NLRB rules for her. And the new PRO Act would make it easier for the board to go to court for injunctions against law-breakers. If the board can’t or won’t, workers could sue for enforcement.
The measure would also make illegal the captive audience meetings bosses and their union busters now use to harangue workers. And it would let union recognition elections be off-site, by mail, or electronically, not just at the plant, office, or shop, where bosses can illegally spy.
Also outlawed: Bosses’ gerrymandering union elections—the Democrats’ words—by either challenging who could vote and/or stuffing the rolls with anti-union workers in advance.
The measure, HR20 in the House, also writes into law the NLRB’s definition of a “joint employer,” where both the headquarters and a local franchise-holder are responsible for obeying, or breaking, labor law. Bosses, supervisors, CEOs, and line managers would all be liable for the fines for labor law-breaking. So would so-called “persuaders,” a.k.a. union-busters.
And it curbs or bans dodges bosses use to throw people out of unions, such as misclassifying them as “independent contractors” or arbitrarily promoting workers to be “supervisors” but without hire-and-fire and other key responsibilities. It narrows who’s a supervisor, too.
Besides outlawing scabs, the new PRO Act restores the right to secondary boycotts. The GOP’s Taft-Hartley Act of 1947 outlawed that, too, while legalizing right to work. And the new bill overturns a recent Supreme Court GOP-majority ruling allowing bosses to force workers to sign mandatory arbitration agreements which override even union contracts.
Mark Gruenberg is head of the Washington, D.C., bureau of People’s World. He is also the editor of the union news service Press Associates Inc. (PAI). Known for his reporting skills, sharp wit, and voluminous knowledge of history, Mark is a compassionate interviewer but a holy terror when going after big corporations and their billionaire owners.El galardonado periodista Mark Gruenberg es el director de la oficina de People’s World en Washington, D.C. También es editor del servicio de noticias sindicales Press Associates Inc. (PAI).
Franklin Roosevelt signs Social Security Act into law, August 14, 1935. (Wikimedia Commons)
When the Supreme Court’s right-wing justices tried to block Franklin Roosevelt’s New Deal programs, he took the court head-on — and won. There’s a lesson there today: directly attacking the court’s power is the only way to rein it in.
One answer is political malpractice. Another answer: complicity. Party leaders may be sending out fundraising emails slamming the John Roberts Court, but they have eschewed court expansion, halted the once-common practice of legislatively overriding justices, and declined to quickly fill lower-court vacancies before a midterm election that could eliminate their Senate majority.
But incompetence and corruption are not the whole story. Democrats have almost certainly also internalized the tale told about the party’s greatest president — the one alleging that Franklin Roosevelt epicallyfailed by challenging the Supreme Court’s power in the late 1930s. In the popular telling, FDR got greedy, tried to pack the court with his ideological allies, but a court-loving public saw it as a crass power grab and unacceptable violation of norms, dooming the initiative and preserving equilibrium. Cue inspiring West Wing music as the republic was saved.
This cartoon has become the key cautionary tale designed to deter any challenge to a court that has been one of the establishment’s last lines of defense. But here’s the inconvenient fact: the story is bullshit — or at least significantly more complicated than the fable.
In truth, Roosevelt did not succeed in packing the court — but his court expansion initiative did succeed in taming the court, which is exactly what Democrats must do right now.
“A Choice Between Substantive Policy and Structural Integrity”
As recounted in Supreme Power, Roosevelt in 1932 ignited a firestorm when he dared to utter a taboo truth during a Baltimore speech at the end of that year’s presidential campaign. He declared that Americans were being crushed by government policies spearheaded by “the Republican Party [which] was in complete control of all branches of the federal government — the Executive, the Senate, the House of Representatives and, I might add for good measure, the Supreme Court as well.”
“Roosevelt Says GOP Has Had Supreme Court Control Since 1929,” blared the front page of the Washington Post, in an article scandalizing the idea that the court had become a political weapon.
In the ensuing years, the court’s conservative block tried to block and dismantle the New Deal program Roosevelt was elected to pursue. In 1935 and 1936, the court’s five conservative justices went on a rampage.
Smithsonian Magazinewrote that the Supreme Court in that time “struck down more significant acts of Congress — including the two foundation stones, the [National Recovery Act] and the [Agricultural Adjustment Act], of Roosevelt’s program — than at any other time in the nation’s history, before or since.” The magazine noted that one decision “destroyed FDR’s plan for industrial recovery” and another “annihilated his farm program.”
Soon after he was reelected in 1936, Roosevelt decided that a direct confrontation with the court was the only way to realize his agenda. He didn’t pretend that the court was some apolitical bastion of dispassionate integrity — he saw it for what it was: a political weapon literally run by a former Republican nominee for president.
In 1937, Roosevelt unveiled his plan to expand the court by allowing presidents to add new justices when any current justice declined to retire after age seventy. He warned that without expansion, the Supreme Court was “coming more and more to constitute a scattered, loosely organized and slowly operating third house of the national legislature.”
In history books and modern punditry, this story then simply ends with the plan dying in Congress — allegedly because Americans pulverized by the Great Depression nonetheless loved the court that was kicking them in the face.
However, a study of public opinion and the court’s moves tell a much different tale of a president and his party losing a closely fought battle but winning a larger war.
The analysis from Ohio State University political scientist Gregory Caldeira shows that Gallup polls found the public was hardly enamored with the court — on the contrary, voters were closely divided on the expansion idea when Roosevelt first proposed his legislation, even as the initiative faced largely negative press coverage from the New York Times, the dominant newspaper of the time.
More important: public support for Roosevelt’s expansion initiative only truly cratered when the court’s conservative majority suddenly halted its attempts to block the New Deal. In particular, the court’s surprising decisions to uphold a state minimum wage and then the pro-union Wagner Act deflated public support for court expansion, as did the subsequent retirement of one of the court’s most conservative justices. The court soon after declined to block social security.
“Evidence accumulated over the years goes against that notion of the (close) relationship between the public and the court,” wrote Caldeira. “I prefer, instead, a much more straightforward account: The Supreme Court outmaneuvered the president. Through a series of shrewd moves, the court put President Roosevelt in the position of arguing for a radical reform on the slimmest of justifications.”
But here’s the key point: he notes that the court’s “shrewd moves” that “outmaneuvered” FDR were in practice “an important jurisprudential retreat” on policy.
“President Roosevelt in essence offered the Supreme Court a choice between substantive policy and structural integrity,” he concludes. “The court wisely chose to give up on the substantive issues and preserve its structural integrity.”
Buried on the Social Security Administration’s website is an accurate summary of what really happened: “The debate on this [expansion] proposal was heated, widespread and over in six months. The president would be decisively rebuffed, his reputation in history tarnished for all time. But the court, it seemed, got the message and suddenly shifted its course . . . the court would sustain a series of New Deal legislation, producing a ‘constitutional revolution in the age of Roosevelt.’”
As Roosevelt himself put it after the fight was over: “We obtained 98 percent of all the objectives intended by the court plan.”
For Democratic politicians, voters, media outlets, and advocacy groups, the moral of the story is not that reprising FDR’s court battle would repeat his failure. It is the opposite: doing what FDR did is probably the only chance to repeat his success in beating back an out-of-control court.
The good news is that at least a few party lawmakers are finally realizing that this isn’t a West Wing episode requiring a Jed Bartlet monologue — this is a high-stakes power struggle requiring some FDR-style tactics. Indeed, there is now Democratic legislation in Congress to add four justices to the panel. There is also legislation to impose term limits on Supreme Court justices — which is a wildly popular idea, according to survey data.
Even better: the justices are starting to worry about such pressure. In the past year, two of them delivered publicspeeches trying to defend the court’s legitimacy — a signal that they are concerned that public confidence in the court has hit historic lows. In fact, the entire Republican machine that packed the court full of right-wing extremists is now panicking about court expansion — which is a sign that it’s precisely what needs to happen.
That said, there is no guarantee that the six archconservatives now spearheading today’s judicial coup would react the same way as their predecessors during the New Deal. There may be nothing that prompts their retreat.
But in that case, public support for expansion could rise if Democrats cite the court’s extremism as yet more proof that expansion is necessary. This would require them to develop some intestinal fortitude and understand that public opinion is not static — it can be moved with enough rhetorical and legislative discipline.
Of course, some Democratic voters first and foremost love norms — and they are anesthetized by a corporate media that is foreverpretending the court is dispassionate and its chief justice is a venerable statesman. So an FDR-esque crusade for court expansion might offend their sense of etiquette.
But ask yourself: What is the alternative here?
Emboldened by Democratic inaction after the antiabortion decision overturning Roe v. Wade, the six right-wing justices now seem well on their way to resurrecting the Lochner era — the inhumane judicial epoch that defined the period before Roosevelt’s battle with the court.
Fireplug and Coneflowers in the Author’s Garden, Highland Park, Illinois, 2013. Photo: The Author.
Highland Park Memoirs
I heard about it from my daughter, Sarah, in Chicago.
“Dad, did you hear about Highland Park?” That was an ominous beginning. She continued: “There was a shooting during the 4th of July Parade. A bunch of people were killed.”
My heart sank. I lived in Highland Park for almost 15 years, from 2001-2015. Sarah too. I had been there just a few weeks ago to visit my dear neighbors Hannah and Joe, and to meet up with Sarah.
“You ok, sweetie?”
“Yeah, but it’s really bad.”
“Let me hang up and find out more.”
I looked at the NYTimes and Guardian and texted Hannah – she and her husband were out of town and ok. I told my wife Harriet, who was out pulling weeds in the garden. I was tearful; she consoled me. Though I hadn’t lived there in a while, Highland Park was a big part of my life. It was where I bought a house with my former wife in late 2001; where I ran hundreds of miles in the beautiful forest reserves; where I taught my dog Echo how to catch a frisbee; where I wrote three books; where I recovered from injuries after a bad car crash; where Sarah went through a very challenging (for all of us) adolescence; where I started a new life after my divorce; and where Harriet and I were married by a rabbi, with Echo as our witness, in 2014.
I never made many friends there, but I didn’t care about that. I had friends enough in Chicago and L.A. And then there was the gift of Hannah – a brilliant and funny art historian (U. of Illinois, Chicago), and her kind businessman husband, Joe Reinstein. Joe and I didn’t have that much in common except for being Jewish, enjoying gardening and liking to make jokes. He sounds a little bit like Jack Benny. Many of you, dear readers, won’t have a clue as to who that is, so please look him up on YouTube.
Highland Park, a city of 30,000, is about one-third Jewish. When my former wife (Catholic) and I moved up to there in 2001, some of our Northwestern University colleagues were surprised that we relocated to such a bourgeois suburb. To quiet the teasing, I told them that we moved there so I could “be among my people.” That shut everybody up. Then as now, identity politics ends discussion. In truth, though I am a cultural Jew, I haven’t stepped inside a synagogue since my bar mitzvah in 1969, not including other people’s bar mitzvahs and weddings.
Now, after the shooting, Highland Park was going to become one more of those names on a list that includes Parkland, Sandy Hook, Buffalo, and Uvalde. The grim consolation is that the list is now so long – and growing longer every day — that Highland Park will soon be displaced in memory by another mass casualty event. In a few years, it will be a footnote. But not for the people whose family members were killed or wounded; not for the town’s other residents who will remember that infamous day, and not for a north Florida transplant who remembers the place with fondness.
Outline of a critique of fascist violence
In time, we’ll find out much more about the confessed killer, Bobby Crimo. But my friend Sue Coe nailed the profile in an email she sent me before he was identified: “He will be a 20-something white male, who hunts, goes online in his bedroom, and over excites himself. His mother/grandmother/caretaker, who he hates, does his laundry, and cooks his food. He won’t have many friends; past fellow students will say he was a loner. Maybe there’s a manifesto, posted online, ripped off from some other moron.” She forgot to mention that he will be a Trump supporter, rare for someone his age, and rarer still in Democratic Highland Park or nearby Highwood where the killer lived with his father and uncle. Sue is clever but not clairvoyant – she described what has recently become the typical profile of the mass shooter.
Crimo may have a diagnosable psychotic illness such as schizophrenia, schizoaffective disorder, or delusional disorder. Alternatively, he might suffer from a less totalizing, but still debilitating mental illness such as borderline personality disorder or depression. He apparently attempted suicide in 2019. In online raps (or rants), he claimed to be compelled to kill. But whether there is a plausible diagnosis or not, the question will be the same: Why did this 21 y.o. kid decide to buy an assault weapon and kill or injure dozens of people he didn’t even know? Answers won’t be found in the DSM but in the convergence of fascism and Republican Party politics.
Fascism is a well-understood political formation, but easier to recognize in hindsight than foresight. It cannot be defined, as some have tried to do, by a delimited set of attributes, for example: 1) militarism and a culture of violence, 2) the leadership (Fuhrer) principle, 3) antagonism to democracy, 4) deferral to the authority of elites, 5) racism, 6) strict control of both gender expression and sexual reproduction, 7) denigration of science, 8) the ubiquity of lies and conspiracy theories, and 9) the bringing of government and civil society to heel in order to enforce one-party rule. The problem with this list or any other, is that it establishes an ideal type that exists nowhere except the mind of the investigator.
Then what use are the words fascist and fascism today? They serve as a warning, enabling us to recognize especially toxic political speech and behavior, and prepare ourselves for the behemoth lying in wait. Does the rampant racism, violence, corruption, and electoral fraud of the last president and current Republican Party mark a fascist turning point in the United States? Does Republican debasement of the Supreme Court – marked by its denial of women’s autonomy, endorsement of gun culture, refusal to accept EPA authority to prevent a climate catastrophe, and endorsement of a theocratic state — indicate the rise of fascism?
To be sure, U.S. capitalist democracy was deranged from the start by slavery and genocide. When those practices were ended or curbed, it was still marked by racial oppression, gross inequality, and environmental degradation. Despite that, U.S. politics has been self-correcting to a surprising degree, staving off fascism when it seemed imminent. The first Ku Klux Klan (1865-1900) was stymied by Progressive Era legislation and policing, and the second (1915-1940) by the Great Northern Migration (which depleted the Black population of the South) and by the democratic solidarity that arose after the Japanese attack on Pearl Harbor in 1941 and Germany’s declaration of war against the U.S. Fascism in other words, has frequently been incipient, but countervailing tendencies were always stronger. However, that pattern – a glide to the right matched by a lurch back to the center — may be changing.
During the last three decades or so, neo-liberal capitalism has sustained a highly productive collaboration with Christian nationalism and other versions of far-right, populist extremism. They are strange bedfellows. The goal of the first is to ensure the highest possible profits for the longest possible time, regardless of the human or environmental consequences. The climate crisis has made this stance existential. Continued economic growth and increasing profits – the lifeblood of large business enterprises — is simply incompatible with environmental responsibility. For that reason, fossil capital, along with its confederates in the weapons, aerospace, steel, and home building industries, is waging a war against the coming era of environmental regulation and economic planning that must inevitably curb growth. That’s what the recent Supreme Court decision, West Virginia vs EPA, was all about. It was a big win for capital against the environmental movement and American labor. Working people, especially the non-white sector, are the first victims of climate change. In addition, the Court’s ruling will be used to attack workplace health and safety laws.
The goal of the second group, the far-right Christian nationalists, anti-abortionists, militias, and self-proclaimed fascists, is to establish a new nation of white Christian, Aryan, or “legacy” Americans who will reclaim the power they believe was taken from them by the Jews, Blacks, feminists, and queers who sought to “replace” them. Their cultism (QAnon, Stop the Steal, anti-Vax, etc), gun-rights militancy and religious enthusiasm has little in common with the secularism and public reserve of the corporate heads, lawyers, bankers, lobbyists, and advertising executives who comprise the neoliberal faction of U.S. conservatism, but they share one fundamental principle: that the only salient economic and political unit is the individual and the family. The neoliberal faction adds a proviso — codified by the Supreme Court in Citizens United — that corporations have many of the same rights as people.
For neoliberal capital, this means that state or federal programs to regulate production, improve social welfare, and protect the environment are both non-sensical and counterproductive; they are based on the mistaken premise that societies exist and have collective interests that need to be safeguarded. For the far right — Christian nationalist, militia, anti-abortion, and the rest — exclusive focus on individuals and families means that any concatenation of social groupings that opposes their apocalyptic vision must be cast aside if not eliminated. Social movements of feminists, queers, Blacks, or any others, are anathema.
This mixture of neo-liberal and far right-populist extremism is highly volatile. It is also the basis of MAGA and Republican Party identity. When that world view is offered up by the former president and his congressional and mass-media followers and apologists, the consequences can be catastrophic: Witness the January 6 coup attempt, and the earlier, far right killings in El Paso, Pittsburgh, Poway, Buffalo, Uvalde…and now Highland Park.
MAGA triggers and the alien within
When I lived in Highland Park, I never locked my door. I know that’s a cliché about small-town life, but it was true. That doesn’t mean the practice is wise. Our house was broken into once, but instead of walking through the unlocked front door, the would-be thieves broke through a locked, glass side door. They didn’t manage to steal anything and hastily exited the front door, likely chased by Echo – notably nippy with strangers — who would not have passed up the chance to licitly bite a burglar. The police came five minutes after we called them and had great sport playing detective – dusting for fingerprints, checking for signs of forced entry, looking for shoe prints in the wet soil outside. They never caught the guys.
The idea that the Highland Park Police would ever have to deal with a murder, much less a mass murder was unimaginable to me. From 2000 to 2020, there hadn’t been a single killing in town. But everyone was aware of the threat guns posed, especially after the Sandy Hook Elementary School shootings in December 2012. In June 2013, Highland Park’s City Council and Mayor Nancy Rotering introduced a measure banning assault weapons and large capacity magazines. I spoke in favor of the it at the June meeting dedicated to the subject, as did many others. However, there were a few who spoke up in opposition, repeating the standard NRA line that people, not guns kill people. One older woman waved a coffee mug and said it could be used as a lethal weapon – a wag near her dared her to try. Another speaker invoked the second amendment with the reverential awe usually reserved for the second commandment – people sniggered. The ban passed easily. It was unsuccessfully challenged in multiple courts, and ultimately survived a Supreme Court review – I doubt it would today.
I now wonder if the confessed killer’s father, Robert Crimo II attended that City Council meeting. He’s a gun lover and Trump supporter who helped his son obtain the rifle used in the shooting. He also ran for mayor of Highland Park in 2019 against the incumbent Mayor Rotering, losing by a margin of 2-1. In April that year, police visited the Crimo home after a report that Robert III (Bobby) had attempted suicide. No action was taken after his parents gave assurances that mental health professionals would be contacted. In September, the police again came to the Crimo household after receiving a call that Bobby had threatened to kill his family. They searched his room and found in his closet 16 knives, a dagger, and a sword. His father later that day claimed they were his, and the weapons were returned. The Highland Park Police promptly reported to the Illinois State Police that Bobby was a “clear and present danger” to himself and others. Despite that, in December 2019, the 19-year-old – who eight months earlier attempted suicide — applied for and was issued a Firearm Owner’s Identification Card (FOID). Because he was underage, the application was co-signed by his father.
The FOID application should have been denied because under state law, no gun permit can be issued to someone “whose mental condition is of such a nature that it poses a clear and present danger to the applicant, or any other person or the community.” In addition, a FOID must be denied to anyone who “has been a patient at a mental health facility in the last five years.” If Bobby’s parents had in fact contacted mental health professionals after the boy’s attempted suicide, they would have had to take him to “a mental health facility,” most likely Northshore Hospital’s Behavioral Health Center in Highland Park, just half a mile from where they lived. Apparently, both the Illinois State Police and the physician or psychologist who treated Bobby, failed to send notification to the Illinois Department of Health Services FOID reporting system.
A few days after being granted his FOID, and then again between June 2020 and September 2021, Crimo bought at least five guns, including two rifles, one of which was the semi-automatic Smith & Wesson M&P15 used in the killings. That’s similar to the guns used by the young, far-right killers in Buffalo and Uvalde. In late September 2020, Bobby attended a Trump rally in Northbook, Illinois. On January 2, 2021, four days before the capital insurrection, Crimo joined other Trump supporters to greet the soon-to-be- ex-president at an unidentified airport. On June 27, 2021, he posted a video of himself draped and dancing in a Trump flag. Sometime later, he had the number “47” tattooed on his face and painted on the side of his car. If Trump is re-elected in 2014, he will be the 47th president, though if the numbers are transposed — 7/4 – they represent the date of the Highland Park shootings.
We know less about Crimo’s actions in the weeks before the shooting, though more information may soon emerge. We know that in some of his most recent YouTube and other postings, he revealed his identification with soldiers, spies, assassins (Lee Harvey Oswald) and warriors — especially with the German SS. After the massacre in Highland Park, he drove up to another, famously Democratic Party stronghold, Madison, Wisconsin, with the intention of shooting up their July 5 parade too. Fortunately, he abandoned that plan when he got there and returned, more or less to the scene of the crime, where he was captured. Was the ongoing Trump saga – the former president’s unrelenting “stop the steal” rhetoric, claims of persecution, exhortations to “take our country back,” endorsement of the NRA, and invitations to violence – a trigger for Crimo? But if they were, why did Crimo attack innocent people at a patriotic parade? There is no obvious answer.
In Male Fantasies (1987), Klaus Theweleit described the transformation of de-commissioned German soldiers after World War I into mercenary militias called Freikorps. Those bands were responsible for political assassinations and the brutal repression of protesting German workers, communists, feminists, and social democrats. By the late ‘20s, they became the stormtroopers (Sturmabteilung) that enabled Hitler’s rise to power. Some became prominent Nazis, like Rudolf Höss, commandant of the Auschwitz concentration and death camps.
Many of the men studied by Theweleit were subjected to stern discipline as children – part of a normally pathological Prussian upbringing — and then further brutalized as soldiers in wartime trenches. Consequently, they developed a sense that they had been hollowed out, or that they had been overcome by an “alien within.” This foreign being was hungry and dangerous, and could find relief only in violence, especially against a crowd. While the solider was stern, bounded, firm and resolute, the crowd was vivid, thriving, shapeless, feminine, social, communal, and sexual – everything he was not, and it had to be destroyed.
Theweleit’s two volume book is widely cited – too widely – in studies of male sexual violence and the psychology of Nazism. There is no easy way to map a wide-ranging study of the literature the psychopathology of World War I veterans onto the mind and behavior of young, mass shooters today. But the preoccupations of the Highland Park killer – assassinations, school shootings, the SS, spies, guns, knives, and militias – suggests comparison with the young fascists in Male Fantasies who emerged in inter-war Europe, scarred and deadly dangerous, who hated crowds, and were ready to follow the orders of a charismatic leader.
Fascism, unlike Covid, can’t be diagnosed with a nose swab; but its symptoms are unmistakable and sometimes fatal. It’s fair to say it killed seven people in Highland Park and injured 30 others. It was also deadly in El Paso, Pittsburgh, Buffalo, and Uvalde. Urgent action is needed to stop the proliferation of assault weapons and guns with large magazines. But this essay is not about the need for gun control, or “gun safety”, essential as that is. It’s about the violence that again struck a U.S. community last week, and the need to resist the Republican far-right – both its corporate and Christian nationalist wings. Until their assault upon our health, safety, bodily autonomy, religious (or irreligious) freedom, and environmental future is stopped, the killing will continue.
Stephen F. Eisenman is Professor Emeritus of Art History at Northwestern University and the author of Gauguin’s Skirt (Thames and Hudson, 1997), The Abu Ghraib Effect (Reaktion, 2007), The Cry of Nature: Art and the Making of Animal Rights (Reaktion, 2015) and many other books. He is also co-founder of the environmental justice non-profit, Anthropocene Alliance. He and the artist Sue Coe and now preparing for publication part two of their series for Rotland Press, American Fascism Now.
Photo: Climate justice rally in Augusta. | Courtesy of 350 Maine
Maine climate activists condemned a ruling by the U.S. Supreme Court on Thursday that severely limits the power of the Environmental Protection Agency (EPA) to combat climate change and has broader implications for federal authority.
“This case is really about coal companies’ radical agenda to try and save themselves,” said Ania Wright, an organizer with Sierra Club Maine. “Coal companies and far-right politicians want the Supreme Court to gut the Clean Air Act and return to the legal framework that we had before the 1970s.”
In the 6-3 decision on West Virginia v. Environmental Protection Agency, the conservative-majority Supreme Court sided with a block of states led by West Virginia that preemptively sought to block the Biden administration from setting standards that are likely to result in a shift away from coal plants and toward those powered by cleaner energy sources.
At the heart of the case was the Clean Power Plan, an Obama administration policy to force power plants to bring down carbon emissions that was first proposed by the EPA in 2014. But the CPP never actually went into effect. It was stopped by the courts and abandoned by the Trump administration and President Joe Biden never brought it back.
Coming on the heels of other far-right decisions by the court on abortion, guns and the separation of church and state, Thursday’s ruling was seen as particularly extreme as it has the potential to severely constrain the executive branch from responding to climate change and other problems.
“Instead of empowering the EPA to clean up deadly toxins, this radical Supreme Court has granted another giveaway to corporate polluters at the expense of human health and the preservation of our communities,” Maine Rep. Chellie Pingree said in a statement after the ruling. “Make no mistake: this decision will set us back years in the fight against climate change.”
Around the country, climate activists condemned the ruling and the court as illegitimate.
“A Supreme Court that sides with the fossil fuel industry over the health and safety of its people is anti-life and illegitimate,” the youth-led Sunrise Movement tweeted.
“Minority rule in the United States is a threat to life on earth,” tweeted Kate Aronoff, author of “A Planet to Win: Why We Need a Green New Deal”.
The opinion, authored by Chief Justice John Roberts, doesn’t go as far as outright banning the EPA from regulating greenhouse gases, but it does take a much narrower interpretation of what the EPA is authorized to do under the Clean Air Act. Previous courts found that greenhouse gases fit within the act’s definition of “air pollutants,” which the EPA is tasked with regulating. The act was passed in the 1970s before climate change had become a major policy concern, and the court previously found the act flexible enough for the EPA to regulate what lawmakers hadn’t specifically anticipated at the time.
The legal justification used to overturn the precedent was developed by Justice Brett Kavanaugh — who Sen. Susan Collins played a pivotal role in seating on the bench — during his 12 years on the U.S. Court of Appeals for the D.C. Circuit.
In the lower court, Kavanaugh voted in a number of cases to limit the regulatory power of the EPA, citing the “major questions doctrine,” which he says prevents a federal agency from regulating something “major” unless it has specifically been ordered to by an act of Congress.
In her dissenting opinion, however, liberal Justice Elena Kagan noted that the “major questions doctrine” is made up. “The majority claims it is just following precedent, but that is not so,” she writes. “The Court has never even used the term ‘major questions doctrine’ before.”
On top of kneecapping the EPA, the decision has broader implications for curtailing the authority of the executive branch.
“Like many recently invented doctrines beloved by the court’s conservatives, the major-questions doctrine is infinitely flexible. Where’s the line between a major question and a minor question? Wherever the conservative majority wants to draw it,” Washington Post columnist Paul Waldman wrote. “In practice, the court’s conservatives can just forbid agencies from carrying out any regulatory activity they don’t like, on the grounds that it’s too ‘major.’”
The decision could also make it harder to pass sweeping legislation like the Affordable Care Care, which was laid out in broad strokes by Congress, leaving many of the technical details to the federal agencies in charge of implementing the health care reform.
Executive action has also been used by Democratic and Republican administrations as a way to bypass gridlock in Congress, where the Senate’s anti-democratic filibuster rule currently makes most meaningful legislation impossible.
Rather than feeling powerlessness to effect change at the federal level, Wright said the court’s decision will allow climate activists to see more clearly the vested interests that lie in the way of bold environmental policies.
“The Supreme Court has an incredible amount of power and influence in the U.S.,” she said. “But there’s other tools that we can use, including state policy. That’s where we’ve seen a lot of climate action in the last couple of years and some true leadership.”
Wright said law and policy is just one tool for creating change and explained that this moment calls for deeper movement building.
“This is also a call for solidarity and intersectionality as we move forward,” she said. “This isn’t just the EPA ruling. It’s the Roe ruling. It’s the gun legislation ruling. It’s so many things. I think we can’t allow our movements to be siloed into these single-issue areas. They’re all interconnected.”
Dan Neumann studied journalism at Colorado State University before beginning his career as a community newspaper reporter in Denver. He reported on the Global North’s interventions in Africa, including documentaries on climate change, international asylum policy and U.S. militarization on the continent before returning to his home state of Illinois to teach community journalism on Chicago’s West Side. He now lives in Portland. Dan can be reached at email@example.com.
A child observes a Mapuche ritual during a demonstration on the first day of the Constitutional Convention. (Felipe Figueroa / SOPA Images / LightRocket via Getty Images)
This article originally appeared in Jacobin | jacobin.com/
In recent years, Chileans have struggled to overturn their undemocratic political system and write a new constitution. Americans should take Chile’s lead and fight for a new constitution too.
On June 24, the Supreme Court announced its long-awaited Dobbs v. Jackson Women’s Health Organization decision, overturning Roe v. Wade by a 6–3 vote, ending fifty years of federally guaranteed abortion rights in the United States. Up to twenty-two states will soon have total or partial abortion bans, stripping the rights of millions of people and making the essential medical procedure far more dangerous and deadly for the poor. The same day the decision was released, tens of thousands of protesters mobilized across the country to defend free and safe abortion on demand without apology.
Chants of “Hey hey, ho ho, the Supreme Court has got to go” and “Fuck SCOTUS” broke out across protests in New York, rightly identifying the Supreme Court as an antidemocratic institution with the power to create and eliminate rights and laws outside the purview of popular democracy. The 6–3 far-right majority seems to have no qualms with wielding the court as a right-wing legislative body, and Justice Clarence Thomas has even argued that the court should roll back gay rights and access to contraception next. The idea that we’re effectively living in an oligarchical Christian theocracy is in many respects not far off. It is an obvious stretch to claim we live in a functioning democracy.
Just weeks ago, Representative Alexandria Ocasio-Cortez articulated that same sentiment, arguing: “It is becoming increasingly difficult for people to defend the stance that we live in a democracy, in a true one. . . . We’re living in oligarchy that has its democratic moments.” She went on to outline the myriad ways the US political system enshrines corporate minoritarian rule and argued that certain structural factors block progressive change. She’s right.
Just like AOC, the earliest socialists recognized the connection between political and social revolution. A more democratic society was seen as better terrain to win and establish social rights and wage class struggle. These same socialists identified the working class as the force that could win political democracy for everyone. Today, left-wing and popular movements around the world have taken up the question of political and constitutional reform, tied to proposals for public programs that can provide tangible material benefits for average people.
Notably, Chileans have been engaged in a decades-long struggle for a new constitution to break from the corporate domination of the country, and will vote on overturning their old political order this summer. Americans have much to learn from their struggle for building the mass movements we need here in the United States to deliver a more free and democratic society.
The Neoliberal Revolution
Chile didn’t always have a wildly pro-capitalist constitution. From 1970 to 1973, the Chilean working class embarked on the world’s first democratic socialist experiment. In the decades that followed, capitalist reaction established a neoliberal economy and an undemocratic system of minority rule much like the one we see in the United States.
Salvador Allende’s Popular Unity government, which came to power in 1970, sought to transform the economy from one dominated by landed elites, family monopolies, and foreign capital to one owned and managed by workers for the collective benefit of all, achieving this revolution through liberal-democratic institutions. During Allende’s three years in power, Chilean workers made immense gains, nationalizing key industries, launching ambitious redistributive social policies, and pioneering worker management of firms. Outside the front of one textile factory in downtown Santiago where workers had successfully won control hung a banner that declared it a Territorio Libre de Explotación, a territory free of exploitation.
Conflict reached a fever pitch in the face of immense capitalist reaction, ultimately resulting in a US-backed military coup that killed Allende, the Chilean road to socialism, and the dreams of the Chilean working class.
Led by General Augusto Pinochet, the new military dictatorship executed, tortured, locked up, and “disappeared” thousands of working-class activists and socialists. Pinochet brought in a cadre of young Milton Friedman acolytes — the Chicago Boys — to manage the economy. The Chicago Boys initiated privatizations, introducing for-profit competition to formerly state-guaranteed social rights, deregulated major industries and cut taxes, and worked to crush labor unions and attract foreign capital, effectively launching the world’s first national neoliberal experiment.
To help institutionalize the regime after seven years of military rule, the government passed a new constitution, written by right-wing ideologue Jaime Guzmán, through a sham plebiscite. The Constitution effectively locked in place the elite-led economic and political system. Chile underwent a process of democratization in the late ’80s and early ’90s after a 1988 plebiscite ended Pinochet’s fifteen years of rule, and the 1989 election delivered the opposition into power. Nonetheless, the process was a managed one, giving the old regime much say in what the new one would look like and largely leaving intact the same Pinochet Constitution and economic model.
In recent decades, new social movements in Chile have emerged, challenging neoliberal orthodoxy and elite rule. Mass uprisings in 2019 rocked the country and forced the Chilean government to allow the Chilean people to write a new constitution.
Recently, the Chilean Constitutional Convention released a draft of a new constitution that will be voted on later this summer. The new constitution, if passed, would be a fundamental break from the current political system, enshrining important social rights and dramatically expanding democracy and popular participation.
The US Constitution has a much different provenance than Chile’s. Still, it serves a similar role Chile’s Constitution has for the past few decades. The US Constitution effectively emerged as a series of agreements and compromises between economic elites with heterogenous interests — those of Northern merchants and bankers and those of Southern Planters. Many of America’s founders explicitly wrote that the system of government they were establishing was built to prevent democratic rule by the masses.
James Madison made clear his disdain for democracy in the Federalist Papers, arguing that “democracies . . . have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”
In recent decades, the further entrenchment of right-wing minority rule in the United States and elite control of the political system have prevented the government from addressing the myriad crises facing Americans. Chileans needed a new constitution and full democratization of society; we in the United States do too.
The Chilean Struggle for a New Constitution
In October 2019, Chile erupted in massive protests, first directed against a Santiago metro fare hike but then toward the entire political and economic system. Since the coup against socialist president Salvador Allende in 1973 and the institution of Pinochet’s military dictatorship, Chile has been at the forefront of the neoliberal revolution that swept the globe, with the erosion of the welfare state in the Global North and the developmental state in the Global South.
As a result, while Chile can boast itself as one of the wealthiest countries in Latin America today, intense inequality reigns supreme. According to sociologist René Rojas in an interview with Jacobin, “somewhere between 30 and 40 percent of Chileans . . . work in the informal market, so they don’t have secure employment for income and to feed their families,” and “about 70 percent of retired elderly workers in Chile make under half of the minimum wage.”
Half of Chileans make roughly $550 every month. Across the board, basic social goods are privatized and commodified. This brutal economic status quo, coupled with a long history of elite domination of the political system by a neoliberal center right and neoliberal center left coalition, has led to sharp declines in voter participation since democracy was reintroduced to Chile in 1989.
The mass uprising, dubbed the estallido social, or social outburst, coalesced around major demands to end austerity, neoliberalism, police repression, and political rule by the economic elite, and guarantee important social rights like health care and housing. Millions took to the streets, faced a brutal police force, and burned down metro stations and buses throughout the country. Nearly two months after the protests began and just days after a nationwide general strike, the national congress approved a referendum on the question of writing a new constitution. The referendum ultimately passed with nearly 80 percent of the vote, along with an uptick in voter turnout.
Months later, voters elected a left-leaning Constituent Assembly to write the new constitution, a draft of which has recently been finalized and will be voted on later this summer. In the presidential elections that followed, Chileans elected Gabriel Boric, a former leader of the 2011 student mobilizations and leader of the new political left in Chile.
A combination of deteriorating global conditions, rising crime and inflation, an uprising among Chile’s indigenous Mapuche population in the South, a more moderate Congress and Senate, and more, has unfortunately fed into the right-wing rechazo (reject) campaign, which is currently leading the polls. But no matter how the vote goes, the fact that Chilean workers have gotten this far is impressive, and the fight for a new constitution and a more expansive democracy is nowhere near over.
The Pinochet Constitution
Many Chileans view their current constitution as a major impediment to ending neoliberalism and inequality in Chile. Since the document’s original passage and the subsequent “managed transition” to democracy that began in 1988, the Constitution has undergone major reforms to eliminate the most antidemocratic vestiges of military dictatorship. However, that constitution is still largely seen as illegitimate due to its undemocratic provenance, and because it blocks major changes to the political and economic system.
A neoliberal economy is practically baked into Chile’s Constitution. Enshrined in it are “right to work” labor laws, the “choice” of private health care, and the prohibition of strikes by “state or municipal functionaries” and workers at public utilities or firms at which “stoppage would seriously endanger the health, the economy of the country, the supply of the population or national security.” The constitution outlines expansive private-property rights and protections from government expropriation.
The electoral reforms in 2015 created far more proportional representation in the Chamber of Deputies, Chile’s lower house, and a bit more in the Senate — one of the factors that allowed the Frente Amplio, Chile’s emergent independent new left, to break up the traditional two-party system in the 2017 elections. Despite these advances, the relative nonproportionality of the Senate, along with high vote thresholds on meaningful changes to the political and economic system, makes it incredibly difficult to achieve greater social equality under the current Constitution.
The US Political System
Chile’s economic system is defined by neoliberalism, austerity, privatized social goods, and the domination of politics by economic and political elites, a political regime that has historically privileged two elite party coalitions and insulates the government from majoritarian decision-making, making it nearly impossible to meaningfully reform the system. If this sounds familiar, that’s because this also describes the political situation in the United States.
Similar to the Chilean Constitution, the US Constitution consists of multiple layers of what Chris Maisano calls “engines of minority rule,” the exact same features of the American system that led AOC to describe the US as an antidemocratic oligarchy. Among these is the Senate, one of the most malapportioned upper chambers in the world.
California, home to nearly 40 million Americans, has the same amount of representation as Wyoming’s nearly 600,000. The far-right Republican Party holds half the seats in the Senate, despite representing 40 million fewer people than the Democrats. In fact, the Senate is designed so antidemocratically that a 1964 Supreme Court decision said that it would be illegal for states to apply the same structure to their state legislatures.
The same malapportionment rears its head in presidential elections through the Electoral College. In the past nine presidential elections, Republicans have only won the popular vote twice, but have ruled for half that same time. Further, the Supreme Court, which is appointed by the undemocratically elected president and confirmed by the undemocratically elected Senate, can veto laws supported by vast majorities of the population via judicial review, a power most high courts in other countries either don’t have or use very sparingly.
In 2000, the court’s conservative majority, two of whom were appointed by George H. W. Bush, carried out what was essentially a judicial coup, stealing the presidential election for George Bush Jr. Its 2010 Citizens United decision allowed for an even greater influx of corporate money into the electoral system, making it easier for the corporate elite to buy elections. The court’s recent repeal of Roe v. Wade has now rolled back millions of peoples’ fundamental rights, despite majorityopposition to the move by the American people.
In addition to the US Constitution, there are other antidemocratic measures incorporated into the American political system. The Senate filibuster, combined with the Senate’s malapportionment, creates a similar situation to the one that exists in Chile, enshrining yet another elite minoritarian veto against popular legislation.
Perhaps most central to the inability of workers to express independent politics in the state is the structure of one-member, “first past the post” legislated seats, which, along with regular one-round presidential elections, all but enshrines a two-party system. In this respect, our political system is even less democratic than Chile’s post-2015. And of course, the endless money in politics makes it extremely difficult for grassroots working-class candidates to compete.
In addition to these structural impediments, the increasingly minoritarian Republican Party has staked its future electoral successes on purposeful partisan malapportionment via gerrymandering and explicit attacks on voting rights. In Wisconsin, In These Timesreports that “gerrymandering efforts have been connected to the passage of extreme policies that don’t have broad voter support, such as six-week abortion bans, anti-union laws and dismantled employee rights.” These checks on popular democracy strictly circumscribe political possibilities, similarly to Chile’s Constitution, blocking progressive change and protecting the status quo.
Mass Action Gets the Goods
As long as the current American political regime remains, there is no clear path to socialism, let alone crucial social democratic reforms like Medicare for All. Even the liberal agenda of the current Democratic administration remains seemingly impossible to achieve.
In the wake of yet another devastating school shooting under a Democratic president ostensibly committed to gun control, we should remain highly skeptical that any meaningful legislation will pass, given Joe Manchin and Krysten Sinema’s continued commitment to the Senate filibuster and the rest of the party’s commitment to “party unity” and backdoor negotiations. Just weeks later, the Supreme Court gutted New York’s gun restrictions. Many rightfully ask how many more kids have to die until the government does something. That number increasingly seems limitless.
The centrality of political reforms to achieving social reforms is not a novel idea. Socialists have long led with demands for universal suffrage, proportional representation, and expansive political freedoms. Friedrich Engels, in his commentary on the German Social Democratic Party’s 1891 Erfurt Program, wrote that “the working class can only come to power under the form of a democratic republic.” Chilean workers recognized this as their struggle against neoliberalism came up against the limitations of their constitutional order. American workers must do the same.
In the United States, major political reforms such as abolishing the filibuster, Senate, Electoral College, and Judicial Review, as well as establishing universal suffrage, proportional representation, and other measures that promote democracy (like making Election Day a national holiday), should be at the forefront of a socialist program to transform the state. These demands would be directly tied to a broader program of social and economic transformation — a different conception of how to organize society and the relationship between people and the state.
Grassroots activism around nonpartisan redistricting in Wisconsin provides an instructive example. At a 2020 redistricting commission, workers mobilized and testified before the panel and demanded nonpartisan redistricting, arguing that the political status quo insulated their representatives from democratic accountability and from having to address the issues they face every day, such as addressing the COVID-19 pandemic or expanding Medicaid. AOC’s recent video critiquing the American political system’s antidemocratic nature is a great example of how socialists should talk about and lead on the issue of democracy.
There are some reforms that are more achievable in the near term: the John Lewis Voting Rights Act, which would help fight Republican attacks on voting rights, the Fair Representation Act, which would establish proportional representation in the House of Representatives, and the National Popular Vote Interstate Compact, which, while not eliminating the Electoral College, would be a stopgap to guarantee that the winner of the popular vote wins presidential elections. We can also pass laws establishing true universal suffrage in the United States, enfranchising those currently and formerly incarcerated.
Further, the Democratic Party could end the Senate filibuster today, or, even more radically, Joe Biden could pack the Supreme Court, institute term limits for justices, or, more preferably, announce that the court decided Marbury v. Madison incorrectly and that the Supreme Court doesn’t have the power of judicial review, returning democratic decision-making to the legislative and executive branches of government. This would prevent the Supreme Court from striking down progressive bills and rolling back social rights, and would also allow the government to reimpose restrictions on money in politics.
These reforms fall short of the major constitutional overhaul necessary to democratize the United States, such as stripping or eliminating the power of the Senate. However, they would create democratic openings for American workers to win meaningful gains in health care, abortion rights, the minimum wage, and gun control, and eventually achieve a constitutional convention. The struggles in Chile also show reciprocal relationships among mass movements against neoliberalism, democratic reforms like establishing proportional representation, the rise of independent left-wing political parties, and a trajectory toward constitutional overhaul.
Chile and other workers’ movements for democracy show that only a mass disruptive political movement with independent expression in the state, streets, and workplace can overturn our current political order and set us on a better terrain for class struggle. We should heed those lessons and build the movements and political institutions necessary to win a truly democratic republic in the United States, a prerequisite to achieving a more equal, just, and free society.
Oren Schweitzer is a member of Yale Young Democratic Socialists of America.
Rep. Alexandria Ocasio-Cortez (D-N.Y.) speaks at a rally in New York City on June 5, 2021. (Photo: Lev Radin/Pacific Press/LightRocket via Getty Images)
“It is our duty to check the Court’s gross overreach of power in violating people’s inalienable rights and seizing for itself the powers of Congress and the president.”
Progressive powerhouse Alexandria Ocasio-Cortez warned Thursday that the United States is “witnessing a judicial coup in progress,” a reaction by the Democratic congresswoman to a raft of highly consequential Supreme Court rulings and the justices’ scheduled hearing of a critical voting rights case.
“If the president and Congress do not restrain the Court now, the Court is signaling they will come for the presidential election next,” Ocasio-Cortez (N.Y.) tweeted in response to news that the Supreme Court will hear oral arguments in Moore v. Harper—a case involving the dubious right-wing “independent state legislature theory” (ISLT)—this October.
ISLT, which the Brennan Center for Justice calls a “baseless” concept “making the rounds in conservative legal circles,” contends that congressional elections can only be regulated by a state’s lawmakers and not its judiciary, or even its constitution. The theory has been embraced by supporters of former President Donald Trump’s efforts to overturn the results of the 2020 presidential election.
“If taken to its extreme, [ISLT] could help foment election subversion,” writes legal scholar Richard L. Hasen in Slate. “How so? Suppose a state court or agency interprets state rules to allow for the counting of certain ballots, and doing so favors one candidate. If the leaders of the legislature are from the other party, and they say that the interpretation does not follow the views of the legislature, it’s impermissible and the results need to flip.”
Ocasio-Cortez asserted that “all our leaders—regardless of party—must recognize this constitutional crisis for what it is.”
“At this point we should be well beyond partisanship,” she added. “Members of Congress have sworn an oath to the Constitution. It is our duty to check the Court’s gross overreach of power in violating people’s inalienable rights and seizing for itself the powers of Congress and the president.”
One way in which progressives have proposed redressing the government’s balance of power is by expanding the Supreme Court. Earlier this week, progressive advocacy groups led by Stand Up America launched the “Four More” campaign in support of the Judiciary Act, proposed legislation that would enlarge the high court from nine to 13 justices.
This isn’t the first time progressives have sounded the alarm over what some have called a “judicial coup.”
Green Party presidential candidate Ralph Nader and others used the term to describe the Supreme Court’s conflict-ladenBush v. Gore ruling that handed the 2000 presidential election to George W. Bush—with the help of some familiar names including John Roberts, Brett Kavanaugh, and Amy Coney Barrett.
Photo: Sen. Susan Collins meets with Justice Brett Kavanaugh ahead of his confirmation to the U.S. Supreme Court. | Zach Gibson, Getty Images
In a decision by a conservative majority largely appointed by presidents who lost the popular vote, the U.S. Supreme Court on Friday struck down Roe v. Wade, invalidating the constitutional protection to an abortion in a decision that immediately puts reproductive rights at risk in 26 Republican-led states.
The ruling was 6-3, with conservative justices Samuel Alito, Clarence Thomas, Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett upholding a Mississippi law that would prevent most abortions after 15 weeks while also outright overturning the 1973 Roe decision that enshrined abortion rights into law. Chief Justice John Roberts filed a separate opinion concurring in the judgment to uphold the Mississippi statute.
Kavanaugh, Gorsuch, Barrett, Roberts and Alito were all appointed by presidents who originally won the White House despite losing the popular vote.
The court’s three liberals, Stephen Breyer, Sonia Sotomayor and Elena Kagan, issued a blistering dissent of the radical conservative court’s opinion. “With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent,” Breyer wrote.
The ruling comes after a draft opinion leaked in May showed a majority of justices were prepared to overturn abortion rights enshrined in Roe v. Wade. That draft opinion generated outrage, but the ultimate outcome of the case remained unchanged.
‘A fundamental assault on women’s rights’
Abortion rights in many conservative-led states are likely to be immediately curbed following the decision.
In Maine, though, lawmakers have codified abortion into state law, meaning it is still legal following the ruling. However, the entire state legislature and the Blaine House are up for grabs in November’s election and the Maine Republican Party and GOP gubernatorial nominee Paul LePage are hostile to abortion rights, putting reproductive health care at risk if the former governor and a Republican majority are elected in November.
Current Democratic Gov. Janet Mills is a supporter of abortion and decried the Supreme Court ruling in a statement Friday.
“This decision is a fundamental assault on women’s rights and on reproductive freedom that will do nothing to stop abortion. In fact, it will only make abortion less safe and jeopardize the lives of women across the nation,” Mills said. “In Maine, I will defend the right to reproductive health care with everything I have, and I pledge to the people of Maine that, so long as I am governor, my veto pen will stand in the way of any effort to undermine, rollback, or outright eliminate the right to safe and legal abortion in Maine.”
Others around the state also condemned the court’s ruling.
“By overturning Roe v. Wade, the Supreme Court has now officially given politicians permission to control what we do with our bodies, deciding that we can no longer be trusted to determine the course for our own lives,” said Nicole Clegg, vice president of public affairs at Planned Parenthood Maine Action Fund. “This dangerous and chilling decision will have devastating consequences across the country, forcing people to travel hundreds, sometimes thousands, of miles for care or remain pregnant.”
Clegg emphasized that abortion is still legal in Maine but noted the threat that LePage and Republicans in the state pose to reproductive health rights. She added that despite the actions of a reactionary Supreme Court, support for legal abortion remains strong around the country, with about 80% of people in favor.
Those in need of abortion-related health care can go to ppnne.org or call Planned Parenthood of Northern New England at 1-866-476-1321 to book an appointment, Clegg said.
In response the decision, Clegg said the group is organizing a march tonight at 5:15 p.m. in support of abortion rights. The rally will start at Lincoln Park in Portland and continue to City Hall, where there will be speakers. In addition, Maine’s three abortion providers — Planned Parenthood, Maine Family Planning and the Mabel Wadsworth Center — will be holding an online forum June 25 at 6:30 p.m. to provide an opportunity for community members to respond to the ruling.
“The impacts of this decision will fall hardest on people who already face discriminatory obstacles to health care — particularly Black, Indigenous, and other people of color, people with disabilities, people in rural areas, young people, undocumented people, and those having difficulty making ends meet,” a spokesperson for Maine Family Planning wrote in an email.
“The right to abortion should be protected at the national level and not left to the states. But with this decision, Maine people must lift their voices together and declare emphatically that we will not be rolling back rights here in Maine,” the organization added.
Others around the state also weighed in on the decision, with the ACLU of Maine calling the ruling shameful and emphasizing the need to safeguard the right to an abortion in the state. Maine Democratic Socialists of America criticized the ruling as well and wrote on Twitter that the group will be holding a rally at Portland’s Monument Square at 2 p.m. on June 26, where people can hear from “abortion recipients, providers, and organizers, connect with attendees and form networks of support and action.”
Collins under fire after ruling
Following the decision, advocates directed ire at Maine Republican Sen. Susan Collins, who purports to support abortion rights but has helped block attempts to codify reproductive health care into law in the face of the Supreme Court case challenging Roe.
Collins also famously cast a pivotal vote in favor of Kavanaugh, who was accused of sexual assault and who many feared would rule against abortion rights. In defending her vote for Kavanaugh, Collins repeatedly claimed that the judge — along with Gorsuch, who she also voted to confirm — would respect precedent set by Roe v. Wade and not vote to overturn it. On Friday, however, Kavanaugh and Gorsuch both voted to strip the constitutional protection to an abortion.
When the draft opinion was leaked in May, advocates expressed frustration that they had repeatedly warned Collins about what voting for Kavanaugh and Gorsuch would mean for abortion rights. “Susan Collins told American women to trust her to protect Roe. She lied,” read the headline of one opinion piece published by the Daily Beast.
Following Friday’s ruling, Collins told reporters that the decision was “inconsistent with what Justices Gorsuch and Kavanaugh said in their testimony and their meetings with me, where they both were insistent on the importance of supporting long-standing precedents that the country has relied upon.” The Maine Republican added that the court’s ruling overturning abortion “is a sudden and radical jolt to the country that will lead to political chaos, anger, and a further loss of confidence in our government.”
However, the group Mainers for Accountable Leadership argued that by voting for Kavanaugh and Gorsuch after reproductive health advocates begged her to oppose them, Collins chose a path that helped lead to Friday’s decision.
“Senator Collins, the overturning of Roe and Casey is your legacy,” the group tweeted. “While you call yourself a trailblazing woman you have used that power to take away a woman’s bodily autonomy. That’s enabling patriarchal and misogynistic systems. We will never forget.”
The Maine Democratic Party also criticized the senator, arguing that Collins’ vote for Kavanaugh and “other virulently anti-choice justices” in part paved the way for abortion rights to be overturned.
Others in the state’s congressional delegation weighed in on Friday’s ruling as well. U.S. Rep. Chellie Pingree called the decision catastrophic and said it represents “the culmination of a decades-long effort by Republican extremists to install anti-choice justices on a high court that routinely overrules Congress and the public’s will with impunity.”
In his statement, Sen. Angus King said the decision was “infuriating” but “unfortunately not a surprise.” He said the goal of overturning abortion rights through the Supreme Court was made explicit by Trump and was a large reason for why — in contrast with Collins — he voted against confirming Gorsuch and Kavanaugh.
“This ruling goes against the wishes of the majority of Americans, and lays a terrifying groundwork for this court to unravel many other hard-earned civil rights in the years ahead,” King said.
Evan Popp studied journalism at Ithaca College and interned at the Progressive magazine, ThinkProgress and the Reporters Committee for Freedom of the Press. He then worked for the Santa Fe New Mexican newspaper before joining Beacon. Evan can be reached at evan(at)mainebeacon.com.