As Trump/Pence Regime Races to Consolidate a Fascist Supreme Court to Rubber-Stamp the All-Around Fascist Transformation of Society:

The Clueless Logic of “The Long Game,” and of Betting the Future of Humanity on the Midterm Elections

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July 10: Since this article was written, Trump has announced he is nominating Judge Brett Kavanaugh for the seat on the U.S. Supreme Court; we will have more to say on this in the future, but the essential analysis of the following article still holds.

As we post this, Donald Trump is preparing to announce his nominee for the seat on the U.S. Supreme Court being vacated by Anthony Kennedy’s retirement. All the candidates the Trump/Pence regime is considering come from a list of hard-right judges prepared by the reactionary Federalist Society, and Trump has made clear that all are committed to overturning women’s right to abortion. (Go here for more on this.)

There is a widespread feeling of a sense of emergency; suggestions from different quarters, even some who are into elections, that we can’t wait and millions are needed now in the streets. This is the orientation of Refuse Fascism, and the message that sounded in the streets in their July 7 demos. But in the midst of this crucial time, the “liberal opposition” of the ruling class is striking poses… the better to put people back to sleep.

Consolidating a Fascist Court—an Emergency? Or “Business as Usual”?

Imagine a crowded bus breaks down on the tracks at a train crossing. As the whistle of an approaching train wails, passengers begin to shout that they should get off the bus, and together push it to safety. The driver responds, “Calm down, everything is under control, the tow truck will be here in 20 minutes.”

This is exactly the clueless—and dangerous!—logic of a July 6 New York Times editorial: “Democrats: Do Not Surrender the Judiciary.” In spite of its defiant-sounding title, and its call for “progressives” to “go to the mattresses” (a reference to The Godfather meaning “put everything on the line to win a life-or-death struggle”), this editorial is in reality an open call to capitulate to the imposition of fascist control of the “highest court in the land” … which would be a MAJOR leap in a fascist lockdown of society as a whole that, once achieved, will be extremely difficult to reverse. And this editorial is right in line with the approach which the Democratic Party leadership and other liberal ruling class forces are promoting amidst growing public alarm. These people are the bus driver telling everyone to “calm down, we’ve got this, no reason to take extraordinary measures.”

Right out of the gate, the editorial says, “Barring some unforeseen development, the president will lock in a 5-to-4 conservative majority, shifting the court solidly to the right for a generation.” Here the Times is ruling “out of order” the kind of powerful mass protest that could prevent this from happening. A level of struggle that could compel ruling class forces to worry that jamming through a fascist nominee might delegitimize or even destabilize the whole regime. The Times rules this out even though we are in the midst of a broad, angry and powerful upsurge against the regime, an upsurge which reflects the feeling of millions that society is being reshaped in an utterly intolerable way, and their desire to act decisively to prevent that. This is shown not only in the hundreds of thousands who have taken to the streets to oppose the regime’s cruelty towards immigrants and refugees, but also in the ways people are increasingly breaking out of “business as usual,” by publicly confronting and shaming regime officials, occupying ICE offices and demanding its abolition, and the fact that growing numbers point to the parallels between Trump/Pence today and the rise of Hitler and Nazism in Germany 70 years ago, with prominent voices of conscience calling for people to act on this understanding of what is at stake for humanity.1

What’s at Stake—Fascist Remaking of Society, Not Mere “Policy” Shifts

From there the Times blandly poses the stakes in this battle by referring to the Court’s “ever-greater hand in policy areas ranging from immigration to guns to ballot access to worker rights.” As if nothing all that dramatic was going on, as if we are facing mere “policy shifts.” Missing entirely is the reality that these “policies” taken as a whole constitute the fascist remaking of all of society. On the table are:

  • An increasingly open program of ethnic cleansing focused on Latino refugees and undocumented immigrants (with legal residents and naturalized citizens also starting to come under attack);
  • The blocking of Muslim immigrants and refugees as an initial step in a broader assault on non-Christian people;
  • The stripping away from women of the right to abortion, reproductive rights more broadly, and really of their status as full human beings;
  • The reversing of the extremely new and tenuous gains of rights for LGBTQ people, the legalization of discrimination, and the return to the criminalization and demonization of gay people that was “the law of the land” until very recently;
  • The unleashing of no-holds-barred police brutality and murder of Black and Brown people, the re-segregation of universities and other institutions, the stripping of voting rights, and the protection of the “right” of white supremacists to spread hate and terrorize.

All these moves and many more in the pipeline are not just a series of extremely bad things, but are integral parts of the fascist remaking of society as a whole—the fascists are bringing into being a different social order in which rights and principles that were at least nominally upheld no longer are, and in which women, minorities, immigrants and dissidents stand on increasingly perilous and ever-diminishing ground.

And very notably, the Times does not mention that the Court will rule on core issues of political power—on at least two levels.

First, there are dozens of highly repressive laws being passed on the state level that criminalize and impose harsh penalties on the forms of dissent and protest that have characterized the struggles of recent years against police murder, against the ravaging of the environment, and increasingly the movement in defense of immigrants and refugees.  The fascist Court will oversee the gutting of the legal right of people to protest in the streets or in any other way outside of elections.

Second, it is likely that, one way or another, the Court will rule on cases pertaining to the continued hold on power of the Trump/Pence regime—whether this is in the form of issues presented by the Mueller investigation, moves towards impeachment, or the outcome of contested elections. Let’s not forget that George W. Bush lost the popular vote, but was installed in power by a Supreme Court decision after the 2000 elections.

The New York Times Recommends… Surrender to Fascism Today, Spend the Next 40 Years Trying to Repair the Damage

The Times’ summation of this impending dramatic remaking of the legal and political landscape? Let’s really throw down… in four monthsin the electoral arena only: “On Nov. 6, voters will have their first chance to arrest Mr. Trump’s warping of the judiciary. Reversing the damage already done will require a much longer-term commitment.”

NO! This is dead wrong! People have their only chance right now to prevent the consolidation of a fascist judiciary. In four months—even with the most optimistic assessment of the outcome of those elections in the face of the fascists’ ability to shape, fake and rig them, and even leaving aside the Democratic Party’s unbroken record of accommodating, conciliating, and capitulating to the regime on every matter of important principle—in four months the qualitative leap in the Court, and really in the whole judiciary, will be a done deal. We will be fighting on much more difficult and dangerous ground, and—if there is not a huge social battle over the Court now—we will be fighting under conditions where accommodation, not resistance, has the initiative.

Even taken on its own terms, the Times doesn’t mention that the existing “semi-fascist” Supreme Court has refused to oppose the open moves by Republican-run state legislatures to shape the outcome of future elections (including the coming midterms) by purging the voter rolls and otherwise suppressing Black, Latino, poor and young voters, and through gerrymandering. A report from NYU’s Brennan Center for Justice estimates that because of gerrymandering, the Democrats would have to win the 2018 popular vote by 11 percentage points—which no party has done in modern history—in order to gain control of Congress.

Beyond that, the electoral arena and the two major parties are instruments of imperialist rule. The people are given the choice between different oppressors – and for all of these politicians, the ongoing stability of the capitalist-imperialist system “trumps” everything else. This is why, for now, almost every Democratic candidate does not even mention impeachment—unless they go out of their way to oppose it. A situation must be created in which the legitimacy of the system is called into question by massive and uncompromising struggle from below and there is more risk to continuing with the status quo than there is by making change. This is why every single major concession that has ever been wrung from the rulers of this society has been won through massive struggle from below that compelled the ruling class to back up, even if temporarily.

“But there IS another way…”

One point the Times’ editorial makes is true though: “The fire now raging against Mr. Trump and his nominees can’t be sustained indefinitely.” As Coco Das of pointed out, “We must recognize that the character of fascism is that it can absorb separate acts of resistance while continually throwing the opposition off balance by rapidly moving its agenda forward.” That is what happened with the Muslim Ban, the struggle around DACA youth and many more.

The key to dealing with this problem is not, as the Times argues, to essentially abandon the immediate field of battle and place our all our bets on a very long-term—and dead-end—electoral struggle. It is to elevate and transform the widespread resistance into one focused on driving this whole regime from power.

As Refuse Fascism’s Call to Action puts it:

But there IS another way. A different kind of protest. We need to organize now for the time when we can launch massive, sustained nonviolent protests in the streets of cities and towns across the country—protests that continue day after day and don’t stop, creating the kind of political situation in which the demand that the Trump/Pence regime be removed from power is met.

1. This aversion to determined mass struggle reflects the position of liberal ruling class forces who do differ with the Trump regime, fearing that it could end up weakening or destabilizing the capitalist-imperialist system, but who do not want the struggle over those differences to take forms which bring the masses of people onto the political stage as an independent force, pose big questions about the nature of U.S. society, and potentially destabilize the grip of the ruling class as a whole. Put bluntly, once millions of people take responsibility and take action to determine the direction of society—as happened in this country and many others in the 1960s—there is no telling how far things will go, particularly when there is scientific revolutionary leadership like that of Bob Avakian and the Revolutionary Communist Party in the mix. The liberal forces in the ruling class consider such mass upheaval a greater danger than the consolidation of a fascist regime!  [back]


Why Controlling the Supreme Court Is Crucial for the Fascist Regime

The Supreme Court generally represents—and helps forge—the consensus of the ruling capitalist class as to how to interpret the Constitution and laws so as to best serve the needs of their system as the world changes and it confronts new challenges. Its interpretations and decisions in effect determine “law of the land”; it is the final authority on what is legal and what is not—on what will and will not be enforced by the state, with its monopoly on “legitimate” violence.

But for the last few decades the ruling class has been sharply divided, and “consensus” has been increasingly impossible. One section sees fascism—and particularly Christian theocratic fascism—as the way to meet the crises and challenges the U.S. rulers face, both at home and internationally. The other section thinks it is better—for their system—to preserve the old (often threadbare) framework of “democracy,” “inclusiveness,” “human rights,” and so on.

The fascist forces have been ascending for two decades; the election of Trump/Pence signified their rise to dominance. If confirmed by the U.S. Senate, Trump’s new justice will join four currently sitting fascist justices and provide a reliable fascist majority on the powerful nine-member Court, and will represent a major leap towards the consolidation of fascist rule.

It’s important to note that a hallmark of fascism is that it does not base itself, even in a formal sense, on “rule of law,” as indicated by Trump’s many declarations that he is above the law, “jokes” about being “president-for-life,” and so on. If fascism is consolidated, it will bully, ignore, overrule or even disband the Supreme Court if that is necessary to implement its program, just as it will openly rig or cancel elections if needed. But moves like that are very dangerous even for an established regime, and can easily trigger both infighting in the ruling class and upheaval from below. As we write this, the fascist Law and Justice Party’s attempt to remake Poland’s Supreme Court has brought tens of thousands of people into the streets for days on end, and has leading opposition figures warning of a coming “civil war.” So a compliant Court that provides legal cover and “constitutional legitimacy” for the regime’s monstrous crimes is of great importance.

See also:

How Do Things Really Change? "What Ended the Vietnam War?"

Stop the Draft Week: “From Dissent to Resistance”, Oakland CA, 1967 (Photo: AP)

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