September 29, 2020

Horse 2761 - The US Supreme Court Was Always Conservative

 Due to the fact that we are saturated in American media and news and because the United States has been the most powerful country in the Anglosphere since at least before 1945, we are awash with news in Australia to do with the appointment of an appointment of a new justice to the United States Supreme Court; despite them have zero relevance to Australian law. I would go so has as to say that more people in Australia know that the United States Supreme Court has 9 members, than would know what the highest court in the Australian court hierarchy is called; much less how many members it has¹

The other thing that I do not understand, is why people are suddenly concerned with the appointment of a conservative judge to the United States Supreme Court; in the light of it almost always being a majority conservative institution.

As far as I can make out, the reasons why anyone would vote for Donald Trump at all are because of his promises to shake up Washington from the outside (which has now been proven to be completely wrong), or because they genuinely hated Hilary Clinton (which given the propagandandising by media outlets like Fox and Breitbart might very well be true), or most likely because they are prepared to make a weird kind of Faustian Bargain which thus far has also included more deaths than all wars since WW2 combined for the sole purpose of having Mr Trump make some Supreme Court nominations.

This is of course the long game that Senate Majority Leader Mitch McConnell has been trying to play for for the last four years. He successfully used the rules of the US Constitution which say that the President can only appoint judges on the advice and consent of the Senate; which he withheld from the then President Barack Obama. Since then he has got two Supreme Court nominations through and with the death of Ruth Bader Ginsburg, that opens up a vacancy for another. 

Nominally that places the inherent bias of the court at 6-3 and locks that kind of advantage in until well after McConnell will have died himself.

However what everyone seems to have forgotten is that not only has the court been nominally conservative since before the memories of everyone's currently alive but those same conservative courts have sometimes moved very quickly indeed.

The landmark case of Roe v Wade in 1973 was passed 7-2 in a nominally conservative court which had a bias of 6-3. That meant for the case to have passed, four judges needed to flip. This is the stirling piece of propaganda which has persisted ever since - that no matter what kind of awful legislation that has been brought through, which includes Reagan's union smashing agenda, the magic words of "Abortion!" and "Gay Marriage!" have been yelled at increasingly stupid and compliant church, for the sole purpose of collecting votes. Just as long as conservatives have the ability to yell those magic words of "Abortion!" and "Gay Marriage!" they can continue to do all kinds of beastly things, including taking the United States to wars on the basis of lies. All the while, the courts have always held the ability to overturn Roe v Wade because the numbers on the Supreme Court have always been there.

Elections are almost never won upon the basis of record. Elections are won upon the expectation of promises that can be kept. That means to say that that it is actually an advantage for conservatives to not repeal Roe v Wade because by keeping it on the books, they have a perpetual symbol that they can rail against. If it was to be repealed, then they lose their symbol and one of their magic words. This is almost certainly the reason why despite being in the majority of the Supreme Court for the entirety of the time since 1973, Roe v Wade hasn't been repealed; even though it could have actually been repealed at any time. 

Essentially it is a giant shell game with the American people being taken for a rube. By yelling "Abortion!", "Gay Marriage!", "Prayer in schools!", things like education have been able to be defunded and gutted, health care has never been extended as a right, obvious racism and violence against people on the basis of the colour of their skin has been allowed to continue with little to no consequence, and the really big commercial interests have been allowed to what they want because everyone else is perpetually distracted².

As Supreme Court appointments are for life, then Mitch McConnell is basically giving his patrons and benefactors a present which perpetuates the advantages that they have either bought for themselves or stolen; and he does so for a very long time. That is the other side of the Faustian Bargain that people have bought into and the genius of Mitch McConnell, the Republican Party, and conservatism generally, has been how to get ordinary people to vote against their own interests for so long.

Even now as America passes the 200,000 death mark due to COVID-19, which is more than all of wars combined since World War II, it still doesn't have universal healthcare. Even as the economy implodes and not only are people losing their jobs but the jobs that they are going back to have the lowest real wages since 1977, America still doesn't have basic wage conditions like holiday pay and sick pay for many industries. Even though the pandemic doesn't care about race or religion, America still has people being murdered by the police and those murders being excused by the judiciary.

These things aren't by accident but by design. It is worth remembering that the current age of conservatism in the United States and the enmeshing of the Republican Party and evangelical voters, was first framed in response to a university getting its tax exempt status removed because it still pursued segregationist policies. Donald Trump isn't some genius political operator, it's just that he quite rightly saw that he could manipulate the electorate just as easily as the Republican Party has done; then after winning office with literally no agenda, he has been useful to the architecture of conservatism.

¹The High Court of Australia has seven members: Kiefel, Bell, Gageler, Keane, Nettle, Gordon, Edelman.

²Installing a reality TV star as the President, has been a tremendous distraction while Congress has gone about its existing agenda almost unchecked.


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