The Supreme Court and the Non-Violent Settling of Elite Disputes

Attorney Kamau Franklin says when there’s been no pressure from the people, the nation’s top court historically protected capitalist interests and served elite opinion

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JESSICA DESVARIEUX, TRNN: Welcome to the Real News Network. I’m Jessica Desvarieux in Baltimore.

On Saturday, February 13, Supreme Court Justice Antonin Scalia was found dead in his sleep during a visit to Texas. Twenty-nine years ago, then-President Ronald Reagan appointed Scalia to the bench. The conservative justice played a large role in many Supreme Court rulings over the last three decades, including Bush v. Gore, Citizens United, and the recent Hobby Lobby decision.

Here to discuss this development and the larger topic of the function of the Supreme Court is Kamau Franklin. Kamau is an attorney who has also organized around issues such as youth development, police misconduct, and creating sustainable urban communities. Thanks for joining us, Kamau.

KAMAU FRANKLIN: Thanks for having me.

DESVARIEUX: So Kamau, let’s talk about not only the legacy of Scalia’s time at the Supreme Court, but this right-wing shift that we’ve seen happen within the court, going back to the years of Reagan. And some of this, its most landmark rulings in recent years. Can you just highlight some of them?

FRANKLIN: Sure. I think the legacy of Scalia is he became sort of the poster boy for right-wing domination on the Supreme Court. And I think since the 1980s, obviously coming out of the period of the ’60s and ’70s with the Supreme Court tilted more to the left, or more liberal, I think Scalia became the, sort of the rock star, the [super] analysis of someone who would put out the things that conservatives wanted to say, but wouldn’t necessarily say. And he would say it from the bench. So I think he became sort of a figurehead, even if he had disputes within the right wing around how cases should be interpreted, I think he surely was a consistent sort of vote for a right-wing ideologue, in terms of shifting the court further to the right.

And so you have cases like Planned Parenthood v. Casey around abortion, you had cases around gun rights and Citizens United, that Scalia played a major role in making sure the Second Amendment was interpreted, when it comes to gun rights, to say that everybody had a right to own a gun, everybody had a right to keep a gun. Citizens United, which opened up even more so money to politics, and made corporate and individual donors, gave them the ability to get unlimited funds and unlimited access to the political system.

So you have someone who really helped make the court what it is today in terms of its right-wing opinions, and in terms of something that doesn’t necessarily help support expanding of civil rights and civil liberties for the most part.

DESVARIEUX: And so Scalia was a self-identified advocate of originalism. What exactly is that, Kamau? You’re an attorney–and what are the pitfalls of this sort of legal theory?

FRANKLIN: Well, originalism is basically the belief that the Constitution should be interpreted as a reasonable person would have interpreted it at the time of its writing. And basically the reasonable person becomes the people who wrote the Constitution. So anything that’s outside the, the words of the Constitution itself, for the most part, should be ignored. And we should only look at what was the, the ideas that the folks who actually wrote the Constitution had in mind.

Now, the limitations to that are some of the most obvious ones. There’s a lot of things that either people did not think about, and things that people would change their mind on, that the Constitution did not consider. And so when you have things like the Constitution basically calling African people, black people, three-fifths of a human being, according to Scalia that could never change unless there was a Constitutional amendment process. Any expansion of the Constitution for Scalia was solely based on an amendment process, and that amendment process, of course, had to rely on maybe a majority of the same people who thought in bigoted or in racialized stereotypes.

In terms of economic policy, the same thing. The Supreme Court was originated for sort of elite, an elite opinion. And any changes that expanded around unions, and minimum wages, usually took place in the streets first and the Supreme Court later on backed it up. But under Scalia and original intent, if it’s not mentioned that minimum wage, the protection of workers’ rights, women’s rights, all of that would not have come to pass, because he would say that that was never in the Constitution.

DESVARIEUX: Yeah, and that would sort of go down to the states, and the states would have to regulate it.

FRANKLIN: Yeah, and then you would have a mishmash system where the one state could, you could have rights different in one state than you have in another state.

DESVARIEUX: Gotcha. Okay. I’m glad you kind of took a little of a macro perspective to what the function of the Supreme Court is. Let’s delve in a little bit deeper. What do you see as not just, you know, what we learn in school about the Supreme Court sort of being part of this checks and balances that we have in the United States. But let’s talk a little bit more about what its function is, really.

FRANKLIN: I think the Supreme Court’s function–I mean, every court system in any place, one of the primary functions is to make sure that people aren’t, let’s say, attacking each other or settling disputes in some kind of violent way. So that’s one function of probably every, any court system throughout history, is to find a new way to settle disputes that’s not done so in the street at gunpoint or at swordpoint, or you know, in terms of fisticuffs or anything else.

But more importantly, as it comes to the way our court system and Supreme Court system has worked, is that particularly around economic issues it’s really been a place where elite opinion and capitalist economics have been sort of protected and enhanced. The Supreme Court, throughout its history, made sure that contracts were supreme, that corporations who have given the same individual rights as, as people. In fact, they were considered human beings for purpose of citizens, as, for purposes of the 14th Amendment.

So you have the Supreme Court actually making sure that certain static positions continue to be held, and it’s only been through challenges that happened in other places for the most part that have caused the Supreme Court as well as most places, and the other two branches of the government, to begin to sway and allow bigger opportunities or more rights to people. I think the Supreme Court has been a politicized area of government, just like the other two branches. I think there has been times when the Supreme Court has actually been useful, and has led the way in some issues of racial justice or in some issues of economic justice after being pushed. But I think it has to be pushed, like other branches of the government.

DESVARIEUX: And speaking to how the Supreme Court has been politicized, those in the election, those campaigning for president right now, many are saying that they’re going to be using this replacing Scalia as sort of a point to get more voters out in the 2016 election cycle. A way to drum up voters, essentially.

So in fact, some think that the next president could even replace up to three justices. You have Ginsburg and Kennedy getting up there in age as well. So what do you make of the argument concerning pragmaticism, and the need to coalesce around the more pragmatic candidate, or nomination, I should say, given the threat of a right-wing presidency?

FRANKLIN: I mean, I think these are really important times and critical times when it comes to U.S. federal government and its, the way it operates and sort of the politicization of all branches of the, of the federal government. I mean, this is, I think, some commentators have said we’re nearing sort of a Constitutional crisis, considering how the politicization of the Supreme court is being handled. You have the Senate, the Senate leadership coming out, the Republican Senate leadership, and saying that they won’t take any nominee from President Obama, whether moderate or otherwise. Even people who they’ve already confirmed to appellate courts by votes the size 97 or 96-0, they’re saying they’ll refuse to take any nomination by the president. And this is obviously a call or a drumbeat to try to get out their most partisan supporters to see if this leads to people saying that this is, the Supreme Court now becomes a sort of a referendum for what happens in a 2016-’17 presidential election.

So I think that what we’re experiencing, and probably a little bit on both sides, but mainly through the Republican angle, is trying to use this to drum up support and base. I think on the Democratic side they’re also going to try to use this to say we are trying to be reasonable, and I think that leads to why they’re maybe thinking about a so-called moderate candidate, as opposed to someone who has, let’s say, better progressive credentials.

DESVARIEUX: Clinton versus Bernie Sanders, essentially.

FRANKLIN: Yeah. I think so. And I think that, I think the electorate on the Democratic side can take this two ways, right. They can say this is an opportunity with a vote for Bernie Sanders to say that we want somebody who’s really progressive making those choices of who’s going to be there in the future. Who are those two or three new Supreme Court justices, we want to make sure that they’re as progressive as possible.

But you have other folks in the electorate who may decide that getting a Clinton in becomes somewhat of a real, more realistic picture for them, because they’re worried about how badly the Republicans would knock over, knock Sanders over the head by calling him a socialist, if he makes it to the general election.

DESVARIEUX: All right. Kamau Franklin, joining us from Atlanta. Thank you so much for being with us.

FRANKLIN: Thank you for having me.

DESVARIEUX: And thank you for joining us on the Real News Network.

End

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