A Reactionary for a Reactionary Body

Neil Gorsuch isn’t the real danger. The Supreme Court is.

Daniel Huizinga / Flickr

Donald Trump’s nomination of Neil Gorsuch to fill Antonin Scalia’s vacant seat on the Supreme Court does not matter, although it matters a great deal. The Supreme Court is not important, except it is of surpassing importance.

Judicial politics are contradictory like that. Any strategy for responding to the Gorsuch nomination and Trump’s judicial agenda more broadly must begin with an appreciation of these paradoxes, and a clear-eyed view of the Supreme Court’s conservative constitutional role.

It is not a matter of opposing Gorsuch because of his originalism — still less of defending the judiciary from capture by conservative jurisprudence. It is a matter of resisting the judiciary itself as a reactionary institution. It is about focusing on the Court, not on Trump’s pick. A movement of mass opposition and disruption must target institutions rather than individuals, power rather than personalities.

A filibuster by Senate Democrats would certainly be a welcome (and newfound) display of parliamentary intransigence. But it would be a mistake to stake all our hopes on the success of a campaign of protest aimed at holding the Democrats to account. There are few reasons to believe they will reprise the Republicans’ exercise of party discipline in denying a confirmation hearing to Merrick Garland, Barack Obama’s pick to succeed Scalia.

Mass action against the reactionary Court must be part of a broader pattern of social unrest. It must look to Standing Rock, Baltimore, and Ferguson for guidance and instruction. It must not be corralled by the Democrats into a campaign of stage-managed protest (especially if the Democrats decline to filibuster Gorsuch for the sake of parliamentary norms no one else cares about).

In short, it will have to look to a horizon more distant than the end of Gorsuch’s confirmation battle, keenly aware of the Court’s strange position in American politics.

The Supreme Court is the site of multiple intersecting contradictions. As the capstone in the edifice of the federal judiciary, it is frequently celebrated as the final dispenser of justice. At the same time, it is an autonomous court controlling its own docket, with a self-conscious mission not of laying out philosophical accounts of justice but of resolving disparities in constitutional and statutory interpretation as they arise from lower courts.

The Court is shrouded in the majesty of the law, cordoned off by the velvet ropes of judicial independence. Yet it often injects itself into political conflicts between other institutions and is a cherished prize in national politics. The highest bench in the land, it holds itself to be bound by precedent — until it doesn’t.

The justices themselves are also ambiguous figures. They never seem to tire of repeating the sententious bromide that they are neutral arbiters — yet their interpretive philosophies frequently offer up divergent outcomes in similar cases. Most justices deny that their jurisprudence is colored by ideological commitments or partisan affiliations — but political scientists have no difficulty assigning them ideology scores on the basis of their voting patterns. No one who follows national politics has trouble discerning which justices share their views and which don’t.

At times, Supreme Court justices appear to be ciphers — empty vessels into which the presidents who nominate them have decanted their preferred political views. At other moments, they are mysterious and oracular. Their involuted and gnomic utterances, it seems, can only be understood by arcane adepts skilled in the divination of such things.

Exposing the Court’s contradictions underscores the limitations of the liberal vision of seeking political change through judicial review.

Neil Gorsuch does indeed represent a threat to many things that both liberals and leftists cherish. His hostility to reproductive rights is plain. He is not, to put it mildly, an exponent of queer liberation. He is certain to be an enemy of the jurisprudential foundations of what’s left of the welfare state.

But Gorsuch is not a threat to the purported dignity or democratic legitimacy of the Court. Historically, the Supreme Court has been one of the principal sites for elaborating and implementing the traditions of white supremacy, capitalist labor relations, and social hierarchy that have characterized American political development. In this regard, Gorsuch is the perfect person for the job.

The majesty of the law is one of the most stubbornly persistent myths in American public life.

Most participants in US politics profess a faith in and respect for judicial independence. Liberals eagerly condemn conservatives for failing to respect current interpretations of constitutional principles, while conservatives happily respond by condemning liberals for distorting the historically received meaning of legal texts.

This dialectical embrace mystifies the fact that both major parties seek to entrench their power and their policies by installing friendly judges in the federal and state judiciaries, and by seeking to maintain majorities of co-ideologues on the Supreme Court.

The belief that the Supreme Court is a responsible guarantor of constitutional rights and liberties is particularly rife among liberals. For decades, they have both accepted and reiterated the narrative that the Constitution is a moral document that, when appropriately interpreted by jurists, restrains the state’s power over the individual.

This narrative is grounded in the experience of the Warren Court, which in the 1950s and ’60s secured limited progressive victories in certain domains of the law — most notably antidiscrimination, criminal procedure, and civil liberties. The Warren Court’s judicial activism became a stencil for later liberal jurists seeking to use judicial review as a vehicle for social change.

But the epoch in which liberal jurisprudence predominated at the Supreme Court turned out to be exceptional. The Warren Court could only pursue its progressive legal project as long as powerful social forces like the Civil Rights Movement placed severe limits on the state’s capacity to preserve the cultural logic of racial domination.

When the reactionary backlash set in and the conservative legal movement advanced, the ideals of democratic citizenship and the equal dignity of persons — which often received their fullest expression not in the legislature but in the courts — took a hammering. The ideological terrain of struggle had shifted. Appeals to elites, no longer hemmed in by mass protest, went unheard.

For all the pressure the Civil Rights Movement was able to bring on the federal government, many of its victories could only be secured through the intercession of the Court when other institutions failed to act. While the Civil Rights Act and the Voting Rights Act were important, if partial, legislative victories, many others were won only through judicial review. Similarly, reproductive rights, expansive individual civil liberties, and modern understandings of the federal government’s powers and responsibilities are all grounded in liberal jurisprudence.

These and other progressive gains are now particularly vulnerable. A predominantly conservative Court could easily reverse them. But such a risk cannot be averted through a campaign to defend judicial gains that, by their very nature, have always been fragile.

The Supreme Court’s brief is inherently conservative. It exercises judicial review in order to patrol the state’s institutional boundaries — boundaries spelled out in the Constitution, an elite-drafted document that limits democratic power and was intended to maintain racial domination.

Democracy requires the rejection of the legalization of politics, in favor of constant antagonism with powerful institutions like the Supreme Court. Robust protections for civil rights, civil liberties, and abortion access will never be safe in the hands of elite judicial guardians.

Trump’s executive order targeting immigrants, nonresidents, and refugees leaving countries the US has been bombing for years provoked an enormous response last weekend. Mass direct actions at airports throughout the country made the order an object of national attention. Backed by mass opposition, the legal challenges were freighted with a social power that no judge could ignore.

Yet the court orders blocking implementation of parts of the ban could not enforce themselves. At some airports, Customs and Border Patrol agents flatly refused to comply.

Against such a backdrop, the nomination of an arch-conservative to join the Court must be seen as merely one element of a broader pattern. The state crisis that began unfolding with Trump’s ban is no longer simply a crisis within the bureaucratic apparatus but a crisis of legality.

States of exception are not new to American politics, of course. All the same, Trump has signaled a chilling willingness — novel in its voracity, if not in its ideological content — to restrict not only the scope of citizenship in the US, but to narrow the range of persons, citizens or otherwise, who can expect to receive fair treatment before the law.

What we need in response is a campaign not just of mass outrage but of mass disruption and disobedience. Certainly, Senate Democrats must be made to feel popular anger at their abandonment of mass movements and their absurd professions of faith in norms of comity (which their Republican colleagues definitively abandoned when they denied Obama the chance to replace Scalia).

But a fight solely directed at Gorsuch threatens to overshadow broader struggles. Organizing against Trump’s judicial agenda must be framed as simply one more front in the campaign against authoritarianism, white supremacy, and xenophobia. Successfully derailing Gorsuch’s confirmation — however unlikely and unlooked-for — would not, by itself, be a resounding victory for such a campaign. More importantly, failing to stop his confirmation should not be seen as a final defeat.

Any effective mass political formation will develop, through the practical activity of those who join and participate in it, in unseen and unexpected ways. Practice has a knack for outpacing theory. But it would be unfortunate indeed if the fight against Gorsuch — a necessary task, no doubt — occupied the attention and exhausted the energy of a nascent movement facing many more dangers and pursuing much bigger goals.