The Rogue Court’s Reactionary Radicalism

by | Jul 6, 2023 | Commentary, Featured

This Is a Catastrophe.

I am finishing the writing of this piece shortly after the July 4 holiday. This is significant — to wonder who this country is now, and before. I began writing it while riding the bus into NYC from Ithaca, NY, on Friday, June 30, while the last three rulings of the term of this right-wing court were being publicized. I was going to meet fabulous friends from Mumbai, India, who were visiting. One is an extraordinary environmental architect who has saved the mangroves through Southeast Asia. They will wonder what is happening here.

There is so much to say and so little to say that is new about the court’s latest rulings, starting with the overturning of Roe v. Wade. One year ago, these newest rogue members of the court did what they were appointed to do: destroy the rights of all women to determine their bodily rights. Trump and right-wing advocates got what they were determined to do: have right-wing zealots infiltrate the court. The entire appointment process was marred from the start by its politicization. And then on top of it, these rogue justices lied in their confirmation hearings saying that they were bound by the rule of precedent.

Before I say anything further, I think the most important thing to do in this moment is to make perfectly clear that the court no longer has standing as a legitimate branch of government, if it ever had. These new justices — Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett — have exposed their agenda for everyone to see, and that is to re-establish the inequalities of race, class, gender, and sex to their earlier/est forms. They will roll back the gains made by the women’s liberation movement and civil rights movement to a whiter supremacist, misogynist ordering. This is what I name as reactionary radicalism. They are turning back the clock on close to half of a century of civil rights and gender gains. There is nothing conservative or ordinary here.

Amy Coney Barrett. Photo by Olivier Douliery/AFP.

My point is simply this: this present court has exposed its radically anti-democratic agenda, call it fascist racist misogyny, even though it is cloaked in the institutional architecture of (liberal) democracy. It is crucial that we as a public not be palliated and quieted by the façade of a court interested in democratic practices. It is crucial to see that the politics of the last half century have moved from liberal to neo-liberal to fascistic democratic agendas. And that we are now at a crucial catastrophic moment.

So, it is imperative for the public to recognize that the Supreme Court is an illegitimate institution. That it has nothing to do with democracy in this moment. That instead it is a renegade institution masking the radical turn towards a deep and thick racist, sexist, classist society. The newest members of the court have made this perfectly clear. They are responsible for this final undoing. And there is no way to reform this with mandatory retirement, court expansion, or term limits. None of this can do enough.

The first step is to realize and become actively conscious of this illegitimacy. The next steps are not as clear and knowable. After all this is complicated territory: Justices are not elected, they are on the court for life, none of the so-called democratic processes of electoral choice and pressure will work. Usual electoral politics and pressure do not apply because there is no election, no accountability.

So here it is — the court does not need our approval, but it does need our obedience. If we become disobedient and create a threat of disorder, the power begins to shift.

It is the court itself that has unveiled its anti-democratic foundation. Justices are supposed to be beyond and above and disconnected from the political forces, and although this has never been the case, it has never been so fully exposed as right now. They must be shown by us — all those affected by their outrageous decisions — that what they have done is unacceptable, starting with the overturning of Roe. And the only way to do this is by and through extra-legal means. I think Rosa Luxemburg would love to be alive for this moment, where the clarity is on the side of revolution and revolt, whatever that will mean in and for this moment.

Adam Liptak leads on the front page of the New York Times, July 2, saying the court is defined by conservative justices but with incremental moves. He maintains that the institutional legitimacy of the court is being negotiated by a conservative majority in flux. But this is not incrementalism. And it is not conservatism. It is reactionary radicalism —they have turned back the clock by almost half a century of civil and women’s (cis, trans, non-binary) rights gains. This is a full-blown crisis. It is important to see how this is not a normal court. Do not lead with stories that say that it is. Instead read a further accounting of the full court term.

These justices are bullies in true renegade form, and so maybe they have offered a gift of demystifying their right-wing agenda. I am hoping that many progressive groups will come together to resist and revolt. This is the time for a massive movement of all our progressive groups, which are many.

You might think the Supreme Court is part of the legal structure that oversees democracy, and even though it never has been fully that, in this moment it never will be unless it is de-mystified as such. These reactionary justices have their power (that they have stolen) but should have no authority. Authority is freely given and acceded to; power is taken and imposed. It is time to take and deny their power and give it to all of us — Black, Brown, poor, trans, gay — the people who know what equality and freedom need to look like.

These newest court rulings are only the beginning. The negation of affirmative action in education will spread to jobs, awards of all sorts, and opportunities in general will all be affected and open to backlash and backward actions. Same with abortion access. Same with debt. Same with climate change. Same with police brutality. One limitation leads to multiple others, and other intended and unintended consequences.

Supreme Court of the United States.

Their use of the notion of colorblindness smacks of their ignorance and their racist prejudice. The U.S. is not colorblind — it is color conscious. The history of chattel slavery has encoded white supremacy as the building block. And uncovering the problem of race does not create the problem. Nor does it mean that color blindness is the end goal. If color does not matter, blindness is not necessary.

The issue of student debt speaks to the outrageous economic inequality that defines all opportunities. Relieving a partial debt allows a partial justice towards opportunity, not even equality. And debt disempowers the ones with it, especially when the debt has historical roots/routes of racial and gender inequity. Fabulous organizer Astra Taylor says without debt relief people’s lives will become more untenable and life cataclysmic. This is an emergency.

Add to this that these right-wing MAGA justices of the court flaunt their power and excess for all to see. Their arrogance and greed has them taking monies and accumulating wealth for their own benefit with no caution or embarrassment. Alito and Thomas do not deny their violations but rather say they are not violations at all. They are smug and dismissive, with no system of ethics.

Let me back up here for a moment.

As I wrote earlier, I was traveling into New York City on June 27 and my phone kept dinging with announcements about the Supreme Court’s newest rulings: Affirmative action, done, over. The right to refuse gay people, using religious belief, access to a website to advertise, done. (And just ignore the fact that the entire case is supposedly hypothetical and made up.) And student debt relief? Forget that too. This court will make sure that the poor remain poor, and debtors remain debtors.

These three decisions were all publicized on one day, the same day. The rejection of any sort of democratic promise is total. Any sense of democratic largesse was stomped upon. How arrogant can these right-wing judges be? And, also how stupid? Why expose yourself so totally, unless totality, better known as fascism, is your politic? Not one wish for one person in need of being seen is granted. So, I am wondering what better way to mobilize a population in defense of themselves.

Just one year ago, these rogue five justices stomped on women’s rights to their bodies, to their choices, to everything. The Dobbs decision was so egregious that tens of thousands of people rallied to vote in the midterms and say no to the Republican right-wing takeover. Even the Democrats were slow to recognize the incredible radical potential of messing with women’s bodily rights.

Those in power do not take democracy seriously enough, whether they are Democrats or Republicans, but somehow the rest of us who live in the world that they are making know how important it is. So: this is the time to make our discontent known.

As I rode into New York City, on the bus, I started tweeting my rage.

We need to take their hubris and turn it against them. Let us all connect to each other after all: Black women have the most debt of any group in this country. The intersections between affirmative action and abortion/reproductive justice, and climate refugees, and white supremacy, and houselessness, and hunger — we are all interconnected, even if unevenly in this web of reactionary radicalism.

My thoughts began that day and three days later, Monday, the day before July 4 — returning home to Ithaca on the bus once again, my initial thoughts continued. I felt trapped and hedged in by the attempt to normalize the right-wing shifts and anger towards all people, from trans to the poor. This is a terrifying moment. The assault is absolutist, totalizing, aggressive. There is no balance in/with racial injustice and reproductive injustice. There are no two sides.

Instead, this is a moment to be terrified —not to disable us, but to mobilize against this assault. Call it what you like: fascist, misogynistic, racist, classist. The court is all of this. Everything matters and is connected so there is no way that you are not affected and shouldn’t be attentive and present.

Elie Mystal writes that the Supreme Court destroyed affirmative action to protect mediocre white people.

The Center of Constitutional Rights calls the decision on affirmative action gutting, devastating, and unsurprising.

Alexandria Ocasio-Cortez says that the court creeps towards authoritarianism, but it is more than creeping with these decisions. And the New York Times’ front-page story explains how these latest decisions express a kind of new centrism orchestrated by Justice Roberts, rather than extremism.

Frustrated while riding home I posted to Facebook:

Black women carry more debt than any other group in our society. Make sure you see the intersections of the courts rulings. They know exactly who and what they are trying to destroy. #fascistdemocracy

Illegitimate justices are crafting their notion of racist misogynist democracy better seen as: bully fascism. #Disobey

When those in positions of power defy and destroy the rights of most of us we have a duty to refuse

And meanwhile I was tweeting:

#WhiteWomen4Affirmative Action.

We must be #AnArmy4Democracy

#AbolishTheSupremeCourt

#Fight4RealDemocracy

#IllegitimateCourtsRNot2Bfollowed

#TheTimeIsNow

#This Court Cannot have the last word

#CourtInJustice  #Disobey

These latest court rulings affect us all. They are democracy destroying decisions. Affirmative action, abortion, debt assist, and gay and trans rights intersect with each other and connect us to each other in the denial of our human rights and our commitment to social justice. Let us build coalitions and connections with each other to demand a better, freer more loving world.

The greatest danger we face today is not knowing that the radical right-wing take-over of the court has happened. This MAGA court is not normal. It is not a simple aberration. It is not some point in the future. It is now.

Sonia Sotomayor, Ketanji Brown Jackson, and Elena Kagan.

We owe it to Sonia Sotomayor, and Eleana Kagan, and Ketanji Brown Jackson to collect ourselves and make our discontent heard loud and clear. They cannot do enough without our assist. The court has failed them and us. Illegitimate laws must be called illegitimate by the masses of us.

 

So, talk about this at your work place; with your friends; at the school your child attends; with your colleagues; at the coffee shop. Consciousness is our first step toward freedom. The next step is getting ourselves to organize a public publicized show of disobedience. All of us in our activist groups: environmental, climate justice, reproductive justice, gun and prison abolition, trans and gay freedoms, debt refusal.

As I finish writing, 4th of July celebrations are proceeding in full. Frederick Douglass asked all those years ago: “and what to the slave is the fourth of July?” Let me ask today: and given our Supreme Court, what is the fourth of July?

Illustration by Sonia Pulido in The Nation.

We need radical honesty right now and radical love to mobilize us to fight for a radically free and equal democracy for each one of us. The time is now.

 

Zillah Eisenstein is a noted international feminist writer and activist and Professor Emerita, Political Theory, Ithaca College.  She is the author of many books, including “The Female Body and the Law” (UC Press, 1988), which won the Victoria Schuck Book Prize for the best book on women and politics; “Hatreds” (Routledge., 1996), “Global Obscenities” (NYU Press, 1998),  “Against Empire” (Zed Press, 2004), and most recently, “Abolitionist Socialist Feminism” (Monthly Review Press, 2019).

Header photo illustration by Salon/Erin Schaff-Pool/Getty Images.

 

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