Howard Zinn Was Right: We Need To Stop Obsessing Over The Supreme Court

The death of Supreme Court Justice and liberal icon Ruth Bader Ginsburg left a gaping hole on America’s highest court. The question over her replacement has quickly become a hotly contested issue which will define the coming weeks and perhaps even months. Mere days after Ginsburg’s death, Trump nominated Amy Coney Barrett, a federal judge on the U.S. Court of Appeals for the Seventh Circuit with a conservative track record. Republican leaders have already signaled that they are ready to confirm Trump’s nominee as quickly as possible, while many Democrats have argued that whoever wins in November should nominate the next Supreme Court Justice. Today, the confirmation hearings began on Capitol Hill, and thus continues the ongoing politicization of the country’s highest judicial institution.

The future of the Supreme Court is one of the most common ‘whataboutisms’ – and perhaps one of the better arguments – that liberals and Democrats frequently invoke in favor of voting for Joe Biden this year, and for voting ‘blue no matter who’ in any given presidential election. But here is why the ‘but think of the Supreme Court’ argument is perhaps overstated, even in this current situation. Even if Biden were to win the election in November, and then nominated a liberal justice, what would be the outcome? It appears not unlikely that the Senate could still be controlled by Republicans, and that Senate Majority Leader Mitch McConnell would work hard to stall and prevent any liberal or moderate appointee that Biden could put forth, just like he and Senate Republicans did when Barack Obama, during his last year in office, had nominated Merrick Garland to replace Antonin Scalia. One can safely assume that the Republican leadership would double down on such efforts, and we would witness a long and drawn-out fight between a Republican-controlled Senate and a Democratic-controlled White House, with Biden wasting what little degree of political capital he would have on a SCOTUS appointment.

But let’s assume for a moment that a President Biden would actually get to appoint a liberal justice to replace ‘The Notorious RBG.’ Then what? With Trump’s recent appointments, SCOTUS was already stacked with a 5-4 majority in favor of conservative justices. And with Neil Gorsuch and Brett Kavanaugh both being relatively ‘young,’ this setup will be with us for the foreseeable future. So, what difference does it make if a decision is handed down 5-4 or 6-3 in favor of conservatives? It would be a loss for liberals regardless. And on the most important and polarizing issues – perhaps notwithstanding Kavanaugh’s carefully calculated positions and deliberations on antitrust law or Planned Parenthood – it is very unlikely that one of the more conservative justices would break ranks and side with the liberals on the bench. Moreover, let us not forget that Biden has his own fraught history of taking moderate and even conservative stances, such as, for instance, when his actions in the Anita Hill case helped clear the path for the confirmation of Clarence Thomas to the Supreme Court in 1991. Any Biden nominee would most likely be another moderate, who may side with liberals on some issues, but who would uphold, preserve, and accede to the center-right political status quo.

In any case, the country’s political discourse does not have to hinge and should not hinge on the composition of the Supreme Court. One way for the next President to deal with a conservative Supreme Court could be to ignore it altogether. On the one hand, this could be done by not actively relying on SCOTUS to affirm policies and agendas in the first place.  SCOTUS does not pick up cases by itself. Cases have to be brought before the court through a long appeals procedure, and if an administration were to not actively rely on this branch of the federal government, or the federal courts system in general, SCOTUS could potentially be rendered relatively ineffective.

On the other hand, it is important to remember that courts do not enforce laws. A president and their administration could simply refuse to follow a decision handed down by SCOTUS. In 1832, for instance, President Andrew Jackson blatantly ignored Chief Justice John Marshall and the Supreme Court’s decision in Worcester v. Georgia, which ruled that the Cherokee did not have to vacate the lands they occupied in Georgia. Yet, Jackson forcefully removed the Cherokee and other nations, and he famously snubbed Marshall, when he remarked that the Chief Justice had ‘made his decision,’ but that he had no way to ‘enforce it.’ While we should obviously never praise Andrew Jackson and his racist policies in any way, this anecdote still offers a valuable lesson. SCOTUS hands down decisions, but it cannot enforce them. If the Executive Branch refuses to comply with a SCOTUS decision, there are ways to circumnavigate or weaken any high court ruling.

One way to render a SCOTUS decision toothless could be achieved by playing the character of American federalism against itself. Liberals commonly point to the potential erosion of Roe v. Wade under a conservative Supreme Court, but they often neglect that the original decision in Roe actually had left the question over how to implement and administer the constitutional right to an abortion to the individual states. Compounded by decisions in subsequent high-profile abortion cases before SCOTUS, such as Webster v. Reproductive Health Services (1989) or Planned Parenthood of Southeastern Pa. v. Casey (1992), abortion rights have further developed highly unequally and disparately across the country, with states like Mississippi having virtually no abortion clinics left, while New York has just codified Roe v. Wade into state law in 2019, and similar proposals are pending in other states. Taking a page from the playbook of conservatives, activists and state legislatures in the individual states could and should work to implement such policies at the state level. And while there are pitfalls to the state level approach, it can be a useful way to circumnavigate a potentially oppressive federal court system.

Another way for a President to tackle the issue of an overtly conservative SCOTUS would be to ‘pack the Court’ to increase the number of seats, as President Franklin D. Roosevelt had proposed in 1937. But wait, some may say, wouldn’t this be undemocratic? Well, the whole concept of the Supreme Court, with lifetime appointments who are not accountable to the American people, is not exactly democratic. Yet, with its own political identities and agendas, SCOTUS has a tremendous impact on American political culture.

Yet, despite the attention that the Supreme Court occupies in public discourse, Americans should not lose sight of the bigger picture.  A few years before his death, eminent leftist historian and activist Howard Zinn had cautioned the American public not to focus too much on the Supreme Court. “Knowing the nature of the political and judicial system of this country, its inherent bias against the poor, against people of color, against dissenters,” Zinn argued, “we cannot become dependent on the courts, or on our political leadership.” In the context of the nominations of Chief Justice John Roberts and Samuel Alito to the bench, Zinn castigated the “weak mutterings of opposition by the Democrats.” Moreover, Zinn recalled how, historically, the courts have sided with entrenched wealth and power rather than with the people, and he affirmed that rights and progress were won only through constant agitation on the part of the latter. “The rights of working people, of women, of black people have not depended on decisions of the courts. Like the other branches of the political system, the courts have recognized these rights only after citizens have engaged in direct action powerful enough to win these rights for themselves. […] The courts have never been on the side of justice, only moving a few degrees one way or the other, unless pushed by the people.”

At the very baseline, Americans should focus less on government, court appointments, and political theater, and instead engage in more organizing for the kind of society that they want and need. After all, as Howard Zinn suggested, regardless of whether the Supreme Court tilts liberal or conservative, it won’t stop American imperialism, nor would it “redistribute the wealth of this country, or establish free medical care for every human being.” In 2020 and beyond, as Zinn had summed up so succinctly already in 2005, “it would be naive to depend on the Supreme Court to defend the rights of poor people, women, people of color, dissenters of all kinds. Those rights only come alive when citizens organize, protest, demonstrate, strike, boycott, rebel, and violate the law in order to uphold justice.” And in addition to all of these actions, perhaps it is time to rethink the institution of the Supreme Court altogether.

Matthew M. Heidtmann holds a PhD in History. He is an Adjunct Professor in History, and his research focuses on American progressivism, conservatism, and capitalism during the late nineteenth and early twentieth century. He also writes occasionally on issues relating to history, politics, and political culture. His writing has appeared in The Washington Post, ROAR Magazine, Real Progressives, and Dissident Voice, among other places.. Follow him on Twitter: Read other articles by Matthew M..