In just the past few days, the US Supreme Court has handed down a series of rulings favoring corporations over workers, and right-wing extremists over the majority of Americans. With the Court following Donald Trump down the path of racism, misogyny, nativism, and deepening inequality, it would appear that yet another pillar of American democracy has crumbled.
NEW YORK – The center is not holding. After US President Donald Trump's election in November 2016, millions of Americans and others around the world took solace in the idea that strong institutions and the US Constitution would protect American democracy from his predations. But events over the past few days suggest that America's institutional shock absorbers are not as robust as advertised. Within the Republican Party, which controls all three branches of the US government, the siren song of tribal politics is drowning out any remaining fidelity to America's constitutional traditions.
The clearest case of institutional rot can be found in the US Supreme Court. In the space of just a few days, the Court has issued four divisive rulings that appear to have been designed to entrench illiberal Trumpism for years to come. Making matters worse, on Wednesday, Justice Anthony M. Kennedy, the Court's longstanding swing voter, announced his retirement, paving the way for Trump to appoint another justice who has been hand-selected by the right-wing Federalist Society.
The Court's rulings this term have all but confirmed the widely held view that it is no longer acting as a wise and impartial adjudicator of the inevitable disputes that arise in any society. Instead, it has become merely another instrument for advancing an extreme right-wing agenda, one that has subjected the United States to minority rule.1
Recall that, in the 2016 election, Trump received three million fewer votes than Hillary Clinton, and Republicans held onto the Senate, even though Republican candidates received fewer votes overall than Democratic candidates. Similarly, in the US House of Representatives, Republicans won a majority far larger than their actual share of the total vote, owing to partisan gerrymandering after the 2010 census. In 2000, the Supreme Court handed the presidency to George W. Bush, who, like Trump, won fewer votes than his opponent. Now it has upheld the Republicans' gerrymandering, as well as Republican legislation that has suppressed voting among groups more likely to vote for Democrats.
OF, BY, AND FOR THE CORPORATIONS
The Court's first egregious decision this week came on Monday, in the case of Ohio v. American Express. In a 5-to-4 decision, the Court upheld anti-competitive contracts that American Express imposes on merchants who accept AmEx credit-card payments. As I pointed out in an amicus brief to the Court, AmEx's arguments in defense of its anti-competitive practices were totally specious.
The decision, written by the Court's most predictably right-wing member, Clarence Thomas, betrayed a deep misunderstanding of economics, and reflected a rigidly ideological, pro-business stance. All told, the ruling amounts to a major victory for monopoly power. Major corporations that engage in similar anti-competitive practices will now be able to entrench their market dominance even further, distorting the economy and increasing America's already glaringly high levels of inequality.
Equally perverse was the Court's ruling in Janus v. American Federation of State, County, and Municipal Employees. In another 5-to-4 decision, the Court prohibited public-sector labor contracts from requiring that government workers contribute dues to unions that are negotiating on their behalf. In a country already suffering from a massive imbalance between employers and workers, the Court has loaded the scale even further in favor of the former. Selfish workers will now be able to free ride on their colleagues' efforts to bargain for improved working conditions and higher pay; and if there are enough of such workers, unions will be further weakened for lack of funds.
The purpose of unions is to take political positions that will advance the interests of workers. And to ensure that the political positions they take reflect the views of a majority of workers, unions hold democratic elections. The five conservative justices who signed the opinion, however, offered the galling argument that forcing workers to pay to support views with which they disagree is a violation of their First Amendment free-speech rights.2
It is worth remembering that in Citizens United v. Federal Election Commission(2010), the Court decided that the First Amendment permits corporations to make unlimited contributions to political campaigns. So, in the eyes of the Court's conservatives, corporations may support views that run contrary to a majority of their shareholders and workers – who had no say in the matter – but unions may not express views that are opposed by even a single dues-payer.1
CULTURE WAR "JUSTICE"
The Court's conservatives offered another perverse reading of the First Amendment in National Institute of Family and Life Advocates v. Becerra. In yet another partisan, 5-to-4 decision, they ruled that a state cannot force a licensed reproductive-health center to inform patients of the availability of abortion options. According to this view, freedom of speech includes the freedom not to say certain things, even if one is purporting to be a legitimate health-care provider.
Under this extremist view, cigarette companies do not have to disclose that smoking is bad for one's health, and banks need not disclose the full extent of their charges. In these and other situations in the past, the Court struck a balance between free speech and other equally important rights. But in the case this week, there was no balancing whatsoever. The reason is simple: The Court, as a tool of the extremist right, is advancing a Republican campaign against a woman's right to make informed decisions concerning her own health.
For years, Republicans at the state level have been rolling out measures to make it harder for women to get an abortion – or even to learn about it – and these policies have proven particularly harmful to the poor. But now that Kennedy is retiring, the right to abortion itself, recognized in the landmark case of Roe v. Wade (1973), will be in the conservatives' crosshairs. If it is overturned, Republican-controlled states across the country will suddenly have the power to deny women's longstanding 14th Amendment right to privacy and control over their bodies.
The fourth alarming decision this week came in Trump v. Hawaii, in which the Court's conservative majority upheld Trump's executive order banning entry to travelers from a number of predominantly Muslim countries. The Court ruled that Trump did not abuse his authority to control immigration in the interest of national security. Yet, as Trump himself has indicated on many occasions, protecting national security was not really his intent when crafting the ban. As Associate Justice Sonia Sotomayor made clear in her blistering dissent, Trump's own incendiary tweets show that his real goal was to keep Muslims out of the US.
To be sure, the Court was reviewing the third revision of Trump's travel ban, which had been expanded beyond Muslims to include bans on North Koreans and Venezuelans. But the administration's changes were obviously meant to disguise Trump's true motives. The administration's claim that a ban is necessary because it is too difficult to vet people from these two countries is laughable. North Koreans, in particular, have been vetted with a fine-tooth comb for decades, given that there has never been a peace agreement formally ending the 1950-1953 Korean War.
And, of course, if Trump's goal is to protect national security, one wonders why Saudi Arabia – whose citizens were responsible for the September 11, 2001, attacks – is not on the list. The answer is obvious: Trump wants to maintain his and his family's lucrative relationship with the Kingdom's rulers.
Now, if the Court's perspective is taken to its logical conclusion, Trump can simply defend any outrageous action he takes on the dubious grounds of "national security" – the alibi beloved by all fascist dictatorships. The Court's conservatives have signaled that they will turn a blind eye to policies motivated by racial or religious animus. And, presumably, they would have no problem supporting Trump' trade war, which he has also launched in the name of national security.
TYRANNY OF THE MINORITY
The four major decisions handed down by the Supreme Court this term are each disturbing in their own way. America already has the highest level of inequality among advanced countries, and the Court has now empowered monopolies and corporations, while gutting the power of trade unions to reach collective bargains that benefit the working and middle classes.
But, beyond that, the way the Court arrived at these four decisions has launched a new political war. Since America's founding, successive governments have struggled to craft norms that would steer the country away from extremism. Heeding the wisdom of America's founders, most US leaders have understood the risks posed by ruling parties that abuse their power, leading to the establishment of an array of processes and institutions to prevent majoritarian diktats. For example, in the US Senate, the filibuster rule sets a floor of 60 votes for passing major legislation, precisely so that the majority party cannot run roughshod over the minority.
But then Republicans started ignoring these norms. The US Constitution requires that the Senate provide "advice and consent" on presidential appointments, and the norm had long been that only truly unqualified candidates should be rejected. But during Barack Obama's presidency, Senate Republicans used the filibuster with abandon to block candidates with whom they disagreed on issues such as abortion. As executive-branch vacancies began to pile up, Senate Democrats, then in the majority, had no choice but to end the filibuster rule for presidential nominations. Even at the time, the dangers of such a move were clear. An extremist president, supported by a compliant Senate, could appoint almost anyone to any position.
Today, we are now witnessing what happens when the system of checks and balances is torn asunder. After retaking the Senate in 2014, Republicans refused even to consider Obama's highly qualified centrist candidate for the Supreme Court, Merrick B. Garland. And last year, after their obstructionism paid off with Trump's victory, the Republicans ended the filibuster for Supreme Court nominations, in order to confirm Trump's pick, Neil M. Gorsuch, to succeed Antonin Scalia (who by that point had been dead for 14 months). Now that Justice Kennedy's retirement has opened another vacancy on the bench, Trump will be able to pack the Court for at least a generation. After that happens, we will most likely be in a situation in which a majority of Americans has no confidence in the Court whatsoever – to say nothing of the other branches of government.
THE DYING OF THE LIGHT
The US Constitution provides that Supreme Court justices "shall hold their Offices during good Behavior," which implies a life-long tenure. But in 1789, people simply did not live as long as they do today. And so, over the years, Republicans have gamed the system by appointing young, sometimes dubiously qualified justices in an attempt to pack the federal courts. The fact that Democrats have not tried to do the same suggests that they, at least, take seriously the responsibility of finding the most qualified candidates.
Given the decisions that the Court handed down this season, it is now obvious that the US needs a constitutional amendment to set term limits for justices. That won't be easy. But it is imperative to restore the Court's legitimacy as a fair arbiter.
The only alternative is to expand the size of the Court, which does not require a constitutional amendment. That is what former President Franklin D. Roosevelt famously tried and failed to do when a narrowly divided Court threatened to obstruct his New Deal reforms. But breaking the "norm" of nine justices poses its own risks, because once that threshold has been crossed, the extremist Republican Party will have yet another tool for packing the Court.3
Another important lesson to be drawn from the Supreme Court's just-completed term is that the rule of law, so often held up as the backbone of American society and its political economy, is perhaps not nearly as sturdy as many imagine it to be. The "law," after all, can and has been used by the powerful to oppress the weak. And, as we are seeing today, it can also be used by a minority to put its foot on the throat of the majority.
Even if Fox News and other forms of right-wing propaganda persuaded a narrow majority of Americans to support the arguments offered by the Court's conservatives, its recent decisions would be questionable. And yet all of them will have far-reaching implications. As Duke University law professor Jedediah Purdy rightly noted, they form "part of a longer historical arc: the dismantling of the legal legacy of the New Deal and the creation of law for a new Gilded Age." In other words, the Court is steadily changing the rules of the game in ways that will alter the nature of American society for the worse.
Trump is taking America down the path of racism, misogyny, nativism, prejudice, and protectionism, while pursuing economic policies that serve the very few at the expense of the overwhelming majority. He and his Republican lackeys are undermining America's system of checks and balances, as well as its truth-telling institutions, from universities and research institutions to the media and intelligence agencies.
The judiciary is supposed to provide a check when others cannot. Now that the Supreme Court has cast its lot with Trump, US democracy is truly in peril.
Joseph E. Stiglitz, a Nobel laureate in economics, is University Professor at Columbia University and Chief Economist at the Roosevelt Institute. His most recent book is Globalization and Its Discontents Revisited: Anti-Globalization in the Era of Trump.