The Supreme Court Has Never Been Liberal

Sonali Kolhatkar

In the hours after Supreme Court Justice Ruth Bader Ginsburg died, shocked Americans speculated about whether or not Republican Senator Mitt Romney would oppose a Senate confirmation vote just weeks before the election. After all, Romney had emerged as the highest-profile Republican lawmaker critical of the president and was the lone senator from his party who voted to convict Trump earlier this year in the Senate impeachment trial. Back then he had accused Trump of “attempting to corrupt an election to maintain power” and of being “guilty of an appalling abuse of public trust.” Yet, after Ginsburg’s death, Romney did an about-face, lured by the prospect of a decades-long rightward tilt in the nation’s highest court. He remarked to reporters that “my liberal friends have, over many decades, gotten very used to the idea of a liberal court,” and that it was now “appropriate for a nation which is center right to have a court which reflects center-right points of view.”

Of course, this is not true. The nation veers center left on issue after issue, whether it is abortion, health care, gun control, immigration, or labor rights and unions. Cases centering on all the aforementioned issues are likely in the next several years to come before the U.S. Supreme Court, whose conservative justices will foist their views onto a nation that veers in the opposite direction.

Listening to Republicans, it is easy to imagine that the right and left ends of the political spectrum are equally weighted on moral grounds. But conservatives do not represent a balance to the fervent overreach of the “radical leftists” they repeatedly invoke. They literally want to “conserve” the status quo. They represent the horrors of past injustices and the extreme racial and gender inequality that marked earlier eras.

In contrast, the left hopes to make “progress” toward a better future, hence the moniker “progressive.” Throughout history, progress has happened because left-leaning radicals relentlessly fought for justice against the forces of conservatism. Today’s conservatives pay lip service to Dr. Martin Luther King Jr. and the civil rights movement. They denounce the horrors of slavery. But they are the ideological time-traveling cousins of segregationists and enslavers. Even President Trump loves to cite King, saying in his September 22 Executive Order on “race and sex stereotyping” that a “belief in the inherent equality of every individual” is what “inspired Dr. Martin Luther King Jr. to dream that his children would one day ‘not be judged by the color of their skin but by the content of their character.’” Trump in his executive order used Dr. King’s legacy to denounce anti-racist and anti-sexist training programs with no hint of irony.

When Dr. King was alive, he was scorned by most white Americans. Are we to believe that were Trump a political leader at that time that he would have been among King’s champions? It is far likelier that he would have been leading calls to lynch the now-revered leader.

History will judge today’s conservatives and especially those backing Trump (yes, Senator Romney, you too) with the same derision with which we now treat yesterday’s forces of regression. Conservatives are social dinosaurs who signal that losing power to those who are less white, less wealthy, and not male is their nightmare scenario. Romney may have marched in a racial justice protest in June and tweeted that “Black Lives Matter.” But in backing a Senate vote for a Trump nominee to the Supreme Court, he ensures that a right-wing majority will result in Black Lives continuing to not Matter. Just the evisceration of the Affordable Care Act—which is likely to be struck down in a conservative majority court—will disproportionately impact African Americans. Other critical issues at stake include voting rights, affirmative action, workplace discrimination and more.

It is important to point out that while Republican lawmakers are to blame for the precarious situation we are in today, the Democratic Party is hardly innocent. Conservatives have been aided in their claims of morality by neoliberal Democrats—those centrists in the liberal party whose dissonance between liberalism and the inequalities wrought by capitalism have left them open to justifiable criticism and rightfully cast aspersions on liberal ideology.

The centrists have muddied the waters by pledging verbal allegiance to social justice issues while deftly working to preserve the status quo like their conservative counterparts. How else to explain that in city after city run by Democrats—Los Angeles, New York, Chicago, Minneapolis—racist police violence continues to plague communities of color? Or that the party refuses to adopt a basic promise to provide government-backed health care for all, while it is all too happy to pour tax dollars into the military?

Even when Justice Ginsberg was alive, the Supreme Court was hardly the protector of liberal ideas that Romney implied. In examining the rulings over this past year, one constitutional lawyer concluded that the “Roberts court remains a bastion of conservatism,” because the rulings that helped preserve immigrant rights, abortion rights, and worker rights were limited and technical in scope, leaving them vulnerable to future courts. Meanwhile, conservative decisions on issues like “religious freedoms” were sweeping and likely to endure challenges. Lawyer and journalist Adam Cohen argued in his recent book Supreme Inequality that over the past 50 years, the Supreme Court has consistently ruled in favor of powerful interests over the rights of the vulnerable.

Now with Ginsburg’s death and the imminent replacement of her seat with a younger, ultra-conservative justice, the court will tilt not from center left to center right. Rather, it will tilt from center right to far right. This makes the November 3 race even more critical. If Trump has had the chance to choose three Supreme Court justices in just four years—far more than his immediate predecessors—imagine what another four years would mean. But with barely a month before the election, the only bulwark against Trumpism is former Vice President Joe Biden, a centrist Democrat. Biden is by no means the radical leftist that Trump’s Republican backers claim he is, and he is not nearly progressive enough. But in order to stave off a slide into fascism, backing Biden-ism as a path to ending Trumpism is the first step of a long journey toward beating back the forces of regression and returning the nation to its tenuous path of progress.