Trump Picks “Scalia Clone” to Replace Scalia on the Supreme Court
January 31, 2017 | Revolution Newspaper | revcom.us
When the ghoulishly reactionary U.S. Supreme Court Justice Antonin Scalia died last year, Obama’s choice to replace him was the conservative, “bipartisan” Merrick Garland. Powerful sections of the ruling class treated Garland as absolutely unacceptable. Republicans stonewalled his nomination and gambled on getting the chance to put someone on the Court who would continue to advance their vision of a reactionary, Christian fascist America. On Tuesday, their wish came true. Donald Trump announced Antonin Scalia’s replacement: Scalia’s “clone”— Neil Gorsuch, a federal judge on the U.S. Court of Appeals for the 10th Circuit.
As we wrote when Scalia died:
Until his death, Antonin Scalia was a “vicious operative for the capitalist-imperialist class who sat on their Supreme Court...” He “made his bones” by viciously opposing affirmative action and voting rights for Black and other minority people; the rights of women to abortion; the rights of gay and lesbian people to marry and raise children, and to generally live their lives free from government persecution; and the basic legal rights of defendants in criminal cases. He consistently fought for capital punishment, on and off the bench....
Like Scalia, Gorsuch promotes “originalism” and “textualism,” claiming the Court must interpret the Constitution literally, as the Founding Fathers understood it at the time it was written. As the Founding Fathers would have understood it? The Founding Fathers were fucking slave owners! Remember, they counted enslaved people as 3/5 of a human being; equality for women wasn’t even a thought for them. No, this approach to the Constitution is not “neutral,” as those like Gorsuch would have you believe.
The reality is that the claim that the U.S. Constitution established a vision and basis for a society where everyone is “equal” is profoundly untrue. From its writing and adoption in 1787 to today, this Constitution has provided the legal justifications and framework for a society torn by deep inequalities, and the preservation of a whole economic and social setup in which a relatively small section of society rules over the masses of people in an oppressive, exploitative system. (For much more on the U.S. Constitution, see the revcom.us series “The U.S. Constitution and the Constitution for the New Socialist Republic in North America (Draft Proposal): Two Constitutions, Two Different Systems,
Two Different Futures for African-American People.”) For complete series see: Introduction , Part 1 , Part 2 , Part 3 , and Part 4 .
Now, the ascension of the Trump-Pence regime is not just a giant step backward—while this is still the same system of capitalism-imperialism, what these rulers are embarking on is to smash the previous norms, including different rights that people have won through great struggle and sacrifice, and slamming into place horrendous new fascist norms. Gorsuch’s nomination to the Supreme Court has to be seen in that context.
A New Yorker magazine article at the time of Scalia’s death summed up:
Scalia’s dissents pounded home that the Supreme Court had no business deciding that the Constitution protected abortion or same-sex intimacy. “The Court has taken sides in the culture war,” he warned, denouncing a decision protecting adult intimacy from criminalization. In his view, the Court was “departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.” He said the same about the constitutional status of women’s equality, which he classed among “the smug assurances” of our time. His originalism promised to hold the Constitution above politics, but his judicial opinions reinforced the impression that his judging was only politics by other means.
Following in Scalia’s footsteps, Gorsuch has portrayed himself as being “above politics” while his rulings have contributed to the Christian fascist vision of the dominance of Christianity in public life. Before the Supreme Court appointment, Gorsuch was perhaps best known for his role on the side of Hobby Lobby, a company owned by Christian fascists who claimed they should be exempt, in the name of “religious freedom,” from the federal regulation requiring corporations to include contraceptive costs in the medical coverage for employees. Gorsuch wrote a concurring opinion in the 10th Circuit decision in favor of Hobby Lobby. The U.S. Supreme Court, consistent with Gorsuch’s position, declared the primacy of Christianity over federal law and ordered the government to stop enforcement of the contraception rule on Hobby Lobby.
In another case, Gorsuch supported the right of a city government to allow a religious group to display a statue of the Ten Commandments in a public park in the name of “religious freedom.” But when another group asked to be able to display their statue, the city said “no.” Gorsuch’s opinion upheld the city’s “First Amendment right” to allow a religious group to display a Christian symbol that was acceptable to most of those in the community, while denying the right to another group.
In a call for sweeping changes to the courts, Gorsuch wrote an article for the National Review in 2005, titled “Liberals & Lawsuits,” attacking liberals for fighting for justice in the courts. He laid out his view, paralleling Scalia’s, that the courts should not play, nor be seen as playing, a role as a recourse against injustice—not just injustice carried out by individuals but by the state. And Gorsuch specifically included the question of same-sex marriage:
American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education. This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.
So, while openly supporting the expanding influence of Christian fundamentalism in public life, Gorsuch at the same time declares to everyone else: “Don’t come to the court looking for justice.” As the unfolding horror of this fascist regime continues and intensifies, Trump’s appointment of Gorsuch to the “highest court of the land” is an ominous development. It enables Scalia’s ugly legacy to continue—a Supreme Court judge who claims his philosophy puts him “above politics,” while using the U.S. Constitution to sanctify, and give the go-ahead for, great crimes against the people, and against humanity.
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