Reactionary Theater of the Absurd
Judge Ketanji Brown Jackson is in the midst of confirmation hearings to become the next Supreme Court justice. If confirmed, she would be the first black woman on the Supreme Court. The liberal press is already hailing her nomination as a triumph, while Republicans in the Senate are frothing at the mouth at the chance to publicly attack her. The whole charade is a farcical exercise, which only serves the interests of both capitalist parties.
Out of the judges linked with the nomination, Ketanji Brown Jackson is thought to be one of the most progressive. Her politics, in addition to being a black woman, makes her a perfect target for Republicans eager to demonstrate their right wing bona fides to their reactionary base. Lindsay Graham attacked her for representing Guantanamo Bay detainees, and for having accused the Bush administration of war crimes. Other Republican senators have attacked her for supposedly soft sentences for child pornography. It doesn’t matter that the sentences she issued were typical, the object has been to repeatedly connect her with the idea of child porn–especially in the minds of QAnon conspiracy theorists.
The right wing predictably hurled accusations from their current culture-war playbook, lazily attempting to link Brown Jackson to support for critical race theory and transgender children. Marsha Blackburn, for instance, attacked Jackson for her role on the board of trustees at Georgetown Day School, a progressive school which, according to Blackburn, teaches that “children can choose their gender.” Blackburn followed this line of attack up by bizarrely asking Jackson to define the word “woman.” One wonders what Blackburn’s answer would be? Ted Cruz also pressed Jackson on her role at Georgetown Day School, asking whether she supported a curriculum which is “overflowing” with “critical race theory.” Cruz’s main example for this allegation was the inclusion of the book Anti-Racist Baby in the school’s curriculum, which he says teaches that “babies are racist.” These attacks will surely continue–and probably escalate in vulgarity–as the hearings drag on.
The fiction of the neutral judge
What has been Jackson’s response to these attacks? Not to defend the progressive aspects of her record, but to hide behind legalism and false neutrality. She responded to criticism of her arguments in defense of Guantanamo Bay detainees by saying that they were arguments she made on behalf of her clients and not her own views. She denied that critical race theory informs her decisions as a judge, and distanced herself from the aspects of “progressive education” at Georgetown Day school which Republicans criticized, saying that the Board of Trustees has no say over the curriculum. Rather than stand up to the avalanche of right-wing demagoguery, she has deflected, repeating empty phrases such as: “I would have to look at the specifics of the case”; “in my limited capacity as a judge I interpret the law”; repeated ad nauseum.
This observation is not a criticism of Jackson specifically; she is of course only doing what is expected in order to get the job. The banality of this whole choreographed dance routine is exactly what is so revealing about it. Everyone involved, the Republicans, the Democrats, the press, and of course the Supreme Court itself; gets something out of it. As we have seen, the Republicans get a stage on which to perform outrage in front of their bigoted voters. The Democrats are delighted by this, because it plays into their own double game. The rabid reaction of the right wing reassures the Democrats’ liberal base that the nominee is sufficiently progressive to strike fear into the hearts of the opposing side; despite the fact that her nomination is supported by such hard-right groupings as the Fraternal Order of Police and the International Association of Chiefs of Police. As a result, Jackson is then free to move to the “center”.
The bourgeois press, with the exception of Fox News, are entirely behind Jackson and use the opportunity to capitalize on the performance. They play up Jackson’s credentials, publish “explainers'' on legal theory, and deploy their fact-checkers against Republican dog whistle attacks. Jackson herself gets a free pass to recuse herself from staking out any defined political territory or having to establish any parameters that may inform her judgements. Instead, she has played into the fiction that judges are politically neutral interpreters of the law, using this charade to prop up her own legitimacy as well as that of the Supreme Court as a whole.
The whole ludicrous display is premised on two lies, each of which contradicts the other. Out of one side of their mouth, both the capitalist parties and the press tell us that the Supreme Court is meant to be a politically neutral body which interprets the law impartially. This lie is essential for maintaining the legitimacy of the Court as a political institution with no accountability to any democratic body.
Out of the other side of their mouth, they tell us that the Court is an important political battleground. Come election time, Democrats admonish the Left to vote for the “lesser evil” because otherwise the Republicans will pack the courts with right wingers. Meanwhile the Republicans have been doing just that, plucking most of their nominations straight from the membership rolls of the right-wing Federalist Society, and all the while moaning about liberal “activist judges” imposing their own ideological views on the law. Both parties leverage this dynamic in order to maintain their legitimacy as a vehicle for the political aspirations of their constituents.
Struggle, not the courts, made victory possible
Liberals often point to landmark decisions by the court – such as Roe v Wade, which legalized abortion nationwide, or Obergefell v Hodges, which legalized gay marriage – as evidence the Court protects civil liberties when legislative overreach threatens them. But is this really the case? In 1973, when Roe v Wade took place, a clear majority of Americans supported legal abortion (75% in 1975, the first year that large polling data exists).
There was a large and radical women’s movement mobilizing in the streets, which was prepared to take disruptive action. The moral force of this movement would have compelled legalization by one means or another. What the Court did was to ensure that legalization took place on its terms, according to the narrowest legal considerations possible. Roe v Wade legalized abortion not on the basis of a woman’s right to choose, but on her right to privacy; her right not to have state investigating her medical procedures. So, abortion could not be banned outright, but every conceivable loophole was left open to shut down clinics on technicalities, so that today there are 6 states with only one abortion provider.
The same dynamics were in play in the struggle for equal marriage. In May of 2015, just months before the Supreme Court finally struck down all bans on gay marriage, 57% of poll respondents supported its legalization, compared to just 39% opposed. Even more significantly, support for gay marriage was on a dramatic upward trajectory. In 2010, for instance, 48% were opposed with just 42% in favor.
The Supreme Court, despite what the justices might say, was certainly aware of these facts. They were also certainly aware that the legislative branch has for a longtime been unable and unwilling to even register public opinion as a factor in policy making (this was shown empirically in a 2014 study). What would the implication have been for the reputation of the court had it ruled against gay marriage in this context? If Congress legalized gay marriage after it had failed to act, the Supreme Court would be completely undermined. If Congress failed to legalize it, and it took a decade or more, it would be even worse; Congress and the Court together would both be exposed as reactionary and antidemocratic. The Court ruled to preserve its own standing and that of the state as a whole.
Propping up a decaying system
By nominating Jackson, Biden and the Democrats are attempting to rescue the Supreme Court’s reputation. The Court’s approval fell to just 54% as of February, all the way down from 69% before Trump’s appointment of Brett Kavanaugh. In October of 2021, one in three people in the US said they would consider abolishing the Court. Clearly, the appointment of such a disgusting man in the face of massive protests has caused the court’s façade of democratic legitimacy to slip.
The Democrats, who present themselves as the more reasonable of capital’s two parties, perceive this as a dangerous trend; especially when combined with Congress’s dismal approval rating of just 18%. They see Jackson’s obvious qualifications as an antidote to Kavanaugh’s vulgarity and her liberal bona fides as a counterweight to the Court’s right-wing supermajority, which now threatens the public perception of the institution as a whole. Jackson herself is obviously happy to play her part in this operation.
The Supreme Court has always functioned primarily as a check on popular power, acting in a progressive fashion only occasionally and in order to rescue the state from its own dangerous and destabilizing trajectory.
The Supreme Court has always functioned primarily as a check on popular power, acting in a progressive fashion only occasionally and in order to rescue the state from its own dangerous and destabilizing trajectory. For every Roe v Wade, there are a dozen Dred Scott, Plessy v Ferguson, or Citizens United decisions. An authentic representative of the working class, up for the same position, would not bow before the sanctity of the Court and make nice with her right wing colleagues, but would leverage the platform of the hearings to expose both the Supreme Court and the Senate as inherently reactionary and antidemocratic institutions. Until that unlikely event occurs, the whole charade is only worth the time it takes to denounce it.
Zack Frailey Escobar is a communist dock worker and sociology student living in San Diego. You can find more of his work at redhorizon.home.blog.
