United States President Donald Trump’s appointee to the Supreme Court, Amy Coney Barrett, will likely be confirmed by the Republican-controlled Senate on October 26.
Barrett is on the far right among judges. She is a member of a fringe religious group that believes the husband is the spiritual “head” of the household. Unsurprisingly, she is a vocal opponent to women’s right to abortion and rejects climate science.
Barrett will fill the space left by Justice Ruth Bader Ginsberg, who died on September 19. Trump’s choice and the mad rush to get Barrett confirmed just nine days before the election, was a calculated move to increase the right-wing majority on the court.
Why? Firstly, because if Trump loses, the Republicans plan to challenge the vote in the courts and the Supreme Court may decide who is President. Having a six person majority makes it more likely that would be Trump.
Secondly, the Trump administration wants the court to strike down the Affordable Care Act (Obamacare). Opening hearings on the matter will begin just one week after the election.
Census
Thirdly, in a 5 to 3 ruling made while Barrett’s hearings in the Senate Judicial Committee were occurring, the court allowed the Federal government to cut short the national census (done once in ten years), which had been extended due to the COVID-19 pandemic.
The extended census was scheduled to finish after the winner of the election was sworn in as President on January 20, 2021, and would have enabled census workers to include more people in the count, particularly from Black and Latino communities.
Trump also ruled that undocumented immigrants will not be included in the census. Most are Latinos, who tend to live among documented family members.
The census figures are used to allocate federal funds. Most people from racial minority groups live in urban areas and will be adversely affected.
The census figures are also used to apportion the House of Representatives’ 435 members among the 50 states. Undercounting Blacks and Latinos, and not counting the undocumented at all, will increase Republican representation.
The Supreme Court will consider Trump’s census ruling on November 30, before the census bureau has to turn over its figures to Trump, who has control over what gets sent on to the Congress. This timing makes it likely it will rule in Trump’s favour.
The Supreme Court can strike down any law, no matter how large the Congressional vote was in its favour, or what the majority of the public thinks, by claiming the law violates the constitution.
Voting rights
For example, a 2013 Supreme Court ruling before Trump’s election struck down the heart of the Voting Rights Act of 1965. This law provided federal oversight of any voting laws adopted in states with a history of suppressing the right to vote for African Americans, mainly in the former segregationist states in the South.
The reason the court gave for its decision was that racism was “no longer an issue”.
Since the decision, these states have introduced new laws restricting the right to vote for African Americans.
Challenges to these new laws have been rejected by the court.
The Republican Party’s takeover of the court has been augmented by Trump’s appointment of many far-right judges in lower federal courts, which have been ratified by the Republican-dominated Senate. This will continue until early January at least, when the newly elected Senators take office.
Supreme Court justices are appointed for life, so this takeover is cemented in place for years or even decades, no matter who wins this and future elections.
Undemocratic
This situation has raised the issue of the undemocratic power of the Supreme Court. Proposals to limit that power are being discussed in the media, assuming the Democrats win control of the White House and Congress in the upcoming elections.
Most Americans are unaware of the fact that the Constitution does not stipulate the number of justices on the court, or their lifetime term. These were adopted by Congress.
The Constitution also does not stipulate whether decisions of the court are reached by majority vote, unanimous vote or something in between.
Proposals to push back against the Republican takeover of the court include raising the number of justices, and appointing Democratic-approved judges to the new positions.
Another proposal is to require that decisions be made by at least seven votes, or a unanimous vote.
The lifetime term of the justices could also be replaced by a defined term.
However, it is unlikely that any Democrat-led administration would do anything like that. It would upset decades and decades of established rules adopted and approved by both parties, and would be considered radical, and too big a break with tradition endangering the stability of capitalist rule.
It is more likely it would hope the Republican-controlled court would bend under public opinion, and not strike down laws adopted by Congress, at least not all of them.
Electoral College
Another undemocratic aspect being questioned is a Constitutional provision allowing the election of the president by the Electoral College, rather than by popular vote.
In 2000, George W Bush lost the popular vote but won the vote in the Electoral College. The same was true in Trump’s 2016 election.
The Electoral College was put into the Constitution to “prevent mob rule”. Fourth US President, James Madison, who was the main “framer” of the Constitution, said it had to “protect the minority of the opulent against the majority”.
The Electoral College is composed of electors chosen by the state legislatures according to the number of members of Congress each state has. The actual practice evolved into having these electors pledge to support one of the presidential candidates elected by popular vote in each state, and ratified by the legislature.
All but two states assign which electors are sent to the Electoral College by a “winner-takes-all” system. If the outcomes are close, the votes pledged to the candidate who barely loses are not counted.
So, a candidate who loses the popular vote can still win in the Electoral College.
This is becoming understood by many to be grossly undemocratic. But to change it would take a Constitutional amendment, proposed by a two-thirds majority vote by both houses of Congress, or by two-thirds of the states requesting it.
Three-quarters of the state legislatures or state conventions would then have to ratify the proposed amendment for it to be adopted.
This won’t happen under current conditions.
Racial reckoning
The founding of the US is at the root of these undemocratic provisions. Because slavery was the economic foundation in many states, the original Constitution had to make provisions to approve of slavery.
This meant that the slave states had to have control over their politics and economy. This was the origin of “states rights” that continued in the “Jim Crow” segregationist system of racial oppression after slavery was overthrown by the Civil War.
The constitution does not say that all citizens have the right to vote. Control over who has the right to vote, and all aspects of voting, was explicitly given to the states from the start.
In the period right after the Civil War, known as Reconstruction, before the counter-revolution installed the Jim Crow system, three important amendments to the Constitution were adopted.
The Thirteenth Amendment abolished slavery — except for prisoners.
This exception has now become an issue in this period of mass incarceration and oppression of Blacks. The film Thirteenth centres on this form of slavery.
The Fourteenth Amendment said all persons born or naturalised in the US were citizens (except for Native Americans, who were not given citizenship until 1924).
This right has also become part of the present national discussion. White racists, including Trump, want to get rid of it, because it grants citizenship to children of undocumented migrants, who are mostly Latinos.
The Fifteenth Amendment says: “The right of citizens of the US to vote shall not be denied or abridged by the US or by any State on account of race, colour or previous condition of servitude.”
This failed to meet the demand of the most radical of the anti-slavery abolitionists, that all citizens have the right to vote. The Jim Crow states got around the amendment by suppressing the right to vote via poll taxes and other provisions. This subterfuge and the terror of the Ku Klux Klan effectively squashed the right to vote for Blacks.
The right of Blacks to vote is again under attack and part of the national discussion.
The explosion of the Black Lives Matter (BLM) movement this year has explicitly brought the police murders of Black people into the national debate. But, it has also raised the fact that the whole history of the British colonies and the US is one of the oppression of African Americans in different forms — from 1619, when the first African slave was brought to North America, to today.
The racism against Blacks has extended to all peoples of colour.
Another impact has been the greater awareness of the genocide of Native Americans and subsequent forms of their oppression up to the present.
White supremacy, the ideology justifying racial oppression, and the reason why many white workers identify with the ruling-class against their interests as workers, is now being openly acknowledged and discussed thanks to the BLM movement.