Rights only for a few, not all: US Supreme Court


The legacy of Joe Biden may be marred should he refuse to fast-track raising the US Supreme Court bench to 15 from the present nine, writes Prof. Madhav Nalapat

President Donald Trump shrugged off his New York liberal tendencies and championed the “nativist” cause of seeking a return of US demographics to what was the situation in the 19th century. Trump’s guide in this was Stephen Miller, who cost his boss a fresh tenure in the job he held from 2017 to 2020. Yesterday is yesterday, today is today, and tomorrow is tomorrow, and woe betide those who believe that yesterday can return in an encore. Although he missed out on the changes that had taken place in the perceptions of US voters over the four decades since he was in his 30s, Trump did fathom the unease within much of the population about the manner of China’s rise, and rode that wave far better than Joe Biden even attempted to do.

It seems clear from the policy errors that the 46th US President has made on issues of geopolitical significance that there are the electoral equivalents of Stephen Miller in the Biden White House as well, nudging him to embrace policies that would generate blowback from the public, an example being the Biden scurry from Afghanistan and his putting into effect the surrender document signed at Doha last year between the US Government and the entity that sheltered Osama Bin Laden even after 9/11. Trump was sworn into office as the President for all of the US, but from the start concentrated only on those segments that he saw as important for his re-election in 2020. Joe Biden was the perfect “Not Trump”, anodyne where the 45th President was testy, avuncular rather than combative. And plainly favouring a big boat rather than a small dinghy where his policies were concerned.

US President Joe Biden (Source_twitter@POTUS)

The problem is that Joe Biden is a politician who has not so much climbed up the ladder as has been pushed up by those who saw him as an instrument for furthering their own preferences, and throughout his career in politics, Biden has not disappointed his backers but has turned out to be a good investment. At the same time, both he as well as Jill Biden are individuals of integrity, and this is unusual in what are termed the corridors of power, where decisions that can create billions of dollars out of thin air almost get made on a regular basis. The problem facing Biden and his party is the innate caution of the man, his skittishness at fiddling with the settled order of institutions, among which is the US Supreme Court.

While Barack Obama was less than zealous in “packing” the Court with justices who leaned towards liberal thoughts, Trump (under the tutelage of Senator Mitch McConnell) ensured during his term that the US Supreme Court became in effect an affiliate of the nativist wing of the Republican Party. The Trump Presidency saw the appointment of three justices who made no secret of their preference for the policies espoused by the Republican Party, and at least in the case of Brett Kavanaugh and Amy Coney Barrett, their belief that five of the nine unelected justices of the US Supreme Court had the right to rewrite the laws and policies passed by the US Congress in the manner that they deemed desirable.

Neil Gorsuch most probably shares their expectation that such activism on the part of an institution that is venerated precisely for its neutrality will not encounter any serious public reaction. Only Chief Justice John Roberts seems to have understood that such forbearance may not survive the repeated assaults on freedoms caused as a result of judicial decisions that limit the choices that are a central factor in well-functioning democracies. Zealots within the Supreme Court disregard such caution in their haste at remodelling the US in their own image. The view of the US Supreme Court majority is that only some and not all the people merit certain rights. This was exactly the way Churchill interpreted the Atlantic Charter to mean freedoms only for those of European ethnicity.

Chief Justice John Roberts

The legacy of Joe Biden may be marred should he refuse to fast-track raising the US Supreme Court bench to fifteen from the present nine, adding six new justices who could outvote the Republican members of that institution. Senators Manchin and Sinema may for now defeat President Biden’s popular measures at boosting the economy, but that would ensure that the 2022 midterm polls could be cast by Biden as a referendum on whether the less privileged in the US deserve some of the largesse that is regularly showered on the wealthy. Lincoln spoke of a government by, for and of the people. Since the Get Rich days of Reagan-Deng-Thatcher in the 1980s, “the people” refer only to the wealthy, with the others ignored except for a few scraps thrown in their direction.

The US Supreme Court opened the floodgates to interference by the hyper wealthy in elections, through legitimising such lures by billionaires, no matter how large. Most recently, a 5:4 majority in the US Supreme Court has permitted the nativists in Texas to severely limit the reproductive freedoms of women. This is a path along which same-sex relationships and inter-racial marriages can come up before the Supreme Court in a similar test of prospective legality, especially as the Court seems less than concerned about the surgical manner in which voter choices are being reduced in states where Trump afficionados have the upper hand on legislation.

Supreme Court Justices (Credit – Fred Schilling, Collection of the Supreme Court of the United States)

At the same time, the 45th President acted the cry-baby whenever there was an electoral loss, even in the recall vote in California. The cacophony of Trumpian protest is that any election lost by Trump backers must be as rigged as they themselves are seeking to make the US system. Once confidence in the ballot gets eroded, the alternative reached for is the bullet. This is a risky game that Trump and his followers are playing, and must please the CCP leadership and its Wahabi partners hugely. Both seek the meltdown of the US in civil strife, and sadly, this is precisely what some verdicts of the US Supreme Court are creating the conditions for.

Joe Biden visibly believes in the innate decency, even of the Taliban. The President of the US must accept that there is as little chance of his winning over the Party of Trump (aka the Republicans) as was demonstrated earlier to him during Barack Obama’s tenure in the Oval Office. An expansion of the Supreme Court from nine to fifteen as well as the passage of the $3.5 trillion stimulus package is essential not just for the Democratic Party but for the stability of the US. Those who believe their billions give them immunity from the social unrest that is already germinating as a consequence of Billionaire First, Common Citizen Last approach spawned by not just elements in the US administration and legislature but in the courts as well.

President Trump got appointed as many as 53 of the 179 judges in the Federal Courts of Appeal, and the consequences of this will play out in a manner not foreseen by zealots who used the Trump presidency (and now the US Supreme Court) to strengthen their stranglehold over policy and thereby the economy. President Biden needs to accept that changes that he regards as radical are in fact the minimum needed to ensure social cohesion in a country under attack by the Sino-Wahabi alliance.

Otherwise, it will not just be President Biden who goes sharply downhill during the coming years but the US and several of its friends and allies as well.

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