Where is the US Supreme Court going?

Adam Smith, Israel/Occupied Palestine, 06.07.2023

After having overturned Roe vs Wade, the Supreme Court is once again going on the attack. However, bowing to public pressure, they did issue one relatively progressive ruling on gerrymandering. However, gerrymandering, along with the fact that the US has a non proportional voting system for the upper house, and the winner-take-all system creates a very undemocratic electoral system.

The US Supreme court, in its recent rulings, makes a mockery of even long standing bourgeois principles. For example, generally, it seeks to limit standing rights, aka, the right to sue someone, and especially when suing on the behalf of someone else. However, in the student loan case, the state sued on behalf of the student loan company, even when its profits had risen and it did not even want to be part of the lawsuit!

Another principle is the one of not dealing with hypotheticals, and trying to settle the case in a way that answers the least questions necessary. However, in the anti-LGBT, the request asking for a LGBT cake was a fake one! “But new reporting shows Smith never once made a wedding website, and a key document in the case may be fake” [1]

The Federalist Society philosophy is that any right not existing in 1776, aka, not “deeply rooted in the nation’s history and traditions”, are not guaranteed by the constitution. This includes many things, let’s take a look at some examples:

  1. Guns for domestic abusers: The courts struck a law making gun ownership for domestic abusers illegal.[2] However, interestingly, in Texas guns for felons are allowed[3]. The reasoning is that in 1776, women didn’t have separate legal standing outside of their husband, and a person cannot sue himself, so therefore it is not a danger to public order, constitutionally speaking.
  2. Affirmative action in universities: “College admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter,” the Supreme Court said in its decision, embracing the argument that affirmative action benefitting some minority students disadvantages others.” [4] This is the classic color blind argument, when we live in a society that is very not so. This brings to mind the famous quote of Anatole France, “the law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread
  3. LGBT Rights: “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class,” she wrote. Civil rights groups and legal scholars also had warned of a possible ripple effect if the Supreme Court ruled in favour of Smith, saying such a decision could undermine laws meant to protect against various forms of discrimination.” [5] Again, sexual orientation is not a protected class in federal law, only gender. This could mean that gay marriage can also be struck down. The supreme court rationale is that this is “compelled speech”, a complete perversion, since no government is forcing them to have a cake-selling business.
  4. Students Loans: ”The top court baulked at the price tag of the debt relief, estimated to be $430bn, saying the executive branch cannot move forward with the plan without explicit authorisation from Congress. “Our precedent – old and new – requires that Congress speak clearly before a Department [of Education] secretary can unilaterally alter large sections of the American economy,” Chief Justice John Roberts wrote for the majority. Biden had relied on the HEROES Act, a 2003 law that allowed the Department of Education to provide student debt relief in cases of a “national emergency” [6] However, the Democratic Party, being a arm of the bourgeoisie, are unwilling and unable to challenge the supreme court(for example, by increasing the number of judges on the supreme court), or the Republicans in the Congress when it is about the debt limit.
  5. EPA: The Supreme Court has also restricted the ability of the Environmental Protection Agency to limit emissions, again I guess clean earth is not part of “life, liberty, and the pursuit of happiness”.
  6. Organized Labor: “A group of drivers went on strike while their mixing trucks were filled with concrete. Although the drivers kept their mixing drums rotating to delay the concrete from hardening and damaging the vehicles, the company was forced to discard the unused product at a financial loss.

The Washington state Supreme Court in 2021 ruled that the company’s claims were preempted by a statute called the National Labor Relations Act (NLRA), saying the company’s loss of concrete was incidental to a strike that could be considered arguably protected under federal labor law.

Conservative Justice Amy Coney Barrett, who wrote the ruling, said the union’s actions had not only destroyed the concrete but had also “posed a risk of foreseeable, aggravated and imminent harm to Glacier’s trucks.” [7] This narrows striking right, since the idea of a strike is to cost damages greater than the lost wages, otherwise there would be no incentive for the business owner to reach an agreement!

“By an 8-to-1 vote, the high court ruled against unionized truck drivers who walked off the job, leaving their trucks loaded with wet concrete, but it preserved the rights of workers to time their strikes for maximum effect.

“Virtually every strike is based on timing that will hurt the employer,” said Stanford Law School professor William Gould, a former chairman of the National Labor Relations Board, and there was “great concern that the court would rule broadly to limit the rights of strikers. “But that didn’t happen,” he noted in an interview with NPR.” [8] But is it clear that the court is waiting for a better case to throw out the NLRB entirely.

  1. Contraceptive medicine: “Despite the upheaval over the past week, one fact remains unchanged: Mifepristone, and medication abortion overall, remains extraordinarily safe and effective. Indeed, in responding to the fact that mifepristone and Ibuprofen have comparable safety risks, the 5th Circuit did not engage with any statistics on that point but, rather, pivoted to differences between the two drugs’ physical labels.

Any decision that seeks to substitute judicial opinion for expert medical determination risks opening the floodgates to political interference in medicine overall. Emboldened far-right activists may target vaccines, fertility treatments—possibly, any treatment such individuals deem personally objectionable—next, expecting at least some sympathy from the judiciary.

While the legal chaos that has resulted over the past week regarding abortion care will continue to have clear harms on ordinary people, the damage this judicial interference in the workings of the FDA is likely to be far-reaching as well if allowed to continue. 

The activists who first brought the suit seeking to overturn mifepristone’s approval filed their case in a jurisdiction that ensured Judge Kacsmaryk—a controversial Trump appointee with a long record of far-right views and opposition to abortion—would hear the case. This practice, known as “forum shopping,” is undertaken by plaintiffs to try to secure an outcome advantageous to their interests. It lays bare the public’s understandable belief that many judges, far from being impartial, are likely to rule based on ideology as opposed to law and fact.” [9]

Also note the following thing, how one attack leads to attack in a different sphere(similar to drug laws being the raison d’etre/justification for surveillance):

Both Judge Kacsmaryk and the 5th Circuit spoke to the Comstock Act, a law passed in 1873 before women had the right to vote in the United States. The law, among its many provisions, bans material related to abortion from being sent through the mail. As early as the 1930s, appeals courts had declined to robustly enforce the law due to the severe and even illogical repercussions that could result from doing so—and the law’s abortion prohibitions were completely ineffective under Roe v. Wade. Now that Roe is overturned, both activists and Republican Attorney Generals have expressed interest in using the 1800s-era law to prohibit medication abortion.

While not a key part of today’s order, the 5th Circuit signaled an openness to arguments that the law’s abortion provisions should be once again become effective, which would mean Americans’ mail would be subject to invasive searches in order to satisfy the far-right desire to enact a nationwide abortion” [10]

  1. Consumer Financial Protection Board: “Next term the justices will hear the government’s appeal of a decision by the U.S. Court of Appeals for the 5th Circuit that found the funding mechanism for the Consumer Financial Protection Bureau unconstitutional. This week, we highlight cert petitions that ask the court to consider, among other things, whether to reverse a second 5th Circuit ruling that invalidated powers of the agency charged with regulating investments, the Securities and Exchange Commission.” [11] I guess there were no banks in 1776, either.
  2. Bribed judges: “The 5th U.S. Circuit Court of Appeals ruled on Thursday that a federal trial judge in Louisiana made an “unfortunate mistake” when she failed to recuse herself in a 2015 civil rights case against Walmart Inc. The judge owned Walmart shares, the appeals court said, so there’s no doubt that she was required to step aside under the rules for judicial recusal.

But the appeals court also said that the plaintiff in the case is not entitled to reassert claims dismissed by a conflicted trial judge – and not just because the judge’s underlying decision was well-grounded. The 5th Circuit held that justice, writ large, is best served by calling out the since-retired trial judge, Rebecca Doherty of Lafayette, Louisiana, for failing to step aside but leaving her judgment intact.” 

When Trump was arrested, it was also a good example of the two tiered justice system, punitive to the poor, lax towards the rich.

Down with the Federalist Society!

Down with the US Supreme Court!

Organize against the coming attacks!


[1] https://www.democracynow.org/2023/6/30/fake_gay_marriage_website_scotus_case

[2] https://publichealth.jhu.edu/the-fifth-circuit-court-decides-to-protect-abusers-guns

[3] https://www.craiggreeninglaw.com/can-convicted-felons-have-guns-in-texas-a-guide-to-firearms-laws/

[4] https://www.aljazeera.com/news/2023/6/29/us-top-court-bans-colleges-from-considering-race-in-admissions

[5] https://www.aljazeera.com/news/2023/6/30/us-top-court-deals-blow-to-lgbtq-rights-in-web-designer-case

[6] https://www.aljazeera.com/news/2023/6/30/us-supreme-court-blocks-bidens-student-debt-forgiveness-push

[7] https://www.reuters.com/legal/us-supreme-court-rules-against-union-fight-over-strike-that-damaged-property-2023-06-01/

[8] https://www.npr.org/2023/06/01/1179524247/supreme-court-ruled-against-a-union-but-left-strikers-rights-protections-untouch

[9] https://www.americanprogress.org/article/what-to-know-about-the-5th-circuit-decision-on-abortion-being-appealed-to-the-supreme-court/

[10] Ibid

[11] https://www.scotusblog.com/2023/03/another-federal-agency-challenges-adverse-ruling-by-5th-circuit/

[12] https://www.reuters.com/legal/legalindustry/justice-best-served-by-leaving-intact-conflicted-judges-ruling-5th-circuit-2022-12-09/

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