With the imminent appointment of Amy Coney Barrett, the unelected and unaccountable US Supreme Court (SCOTUS) has received an unusual amount of attention this election cycle. Unable to offer an appealing candidate or any prospect for real change, the Democrats have rested their case for “voting blue” almost exclusively on a new variant of lesser evilism—“harm reduction.” They argue that only by voting for Biden can the Supreme Court be protected from additional Trump appointments, which would further tip the balance in favor of the current conservative majority. Under this pressure, many people will hold their noses yet again and vote, not so much for Biden as against Trump. But does this make any real difference when it comes to the decisions of the court?

A closer look at the history and workings of the country’s highest court reveals that, as a key institution in capitalist society, the court is not the “last line of defense for progress” but rather the opposite—regardless of its composition.

Even before the passing of Ruth Bader Ginsburg (RBG), Democrats sought to sweeten the unpalatability of a Biden vote by equating it with retaining the deceased liberal icon’s seat. RBG was expected to retire due to age and health reasons during the next administration, such that whoever won this election would get to nominate her replacement. However, in a vagary of fate, she passed away earlier than she had planned, and Donald Trump wasted no time announcing his nominee to replace her. His choice: another woman—Amy Coney Barrett—a federal appellate judge known for her ultraconservative record and religiosity.

Senate Republicans blocked the confirmation of Obama’s SCOTUS nominee, Merrick Garland, for almost a year, in an unprecedented and controversial move because his nomination was too close to the 2016 election. But prominent Senate Democrats declared from the outset that they did not intend to block Barrett’s confirmation process, currently underway, although the election is just days away.

Showing the duplicity and lack of principle that characterizes his party, Biden said during his first debate with Trump that he is “not opposed to the justice [Barrett], she seems like a very fine person.” In the same breath, he added that her nomination put Roe v. Wade and the right to abortion “on the ballot” in 2020 and that only he can save it. Thus, the Democrats want us to believe that Biden is our only chance against a menace he does not oppose.

Lenin explained long ago that the bourgeois state, despite its “separation of powers,” formal legalities, and neutral facade, is ultimately an instrument of oppression of the capitalist class over the working class. As one of the three branches of the bourgeois state, the judiciary is an integral part of capitalist rule, as it cloaks it with the appearance of fairness.

Bourgeois idealism vs. scientific socialism

The US Constitution is the legal blueprint that grants the bourgeois state its authority. It divides state power into three branches: the legislative, which creates the laws; the executive, which enforces the laws; and the judiciary, which interprets the laws, including the Constitution itself.

According to bourgeois ideology, the rule of law, beginning with the Constitution, expresses the population’s will, setting forth the foundation of society and the framework of social relations. This is pure idealism. Firstly, the Constitution was not drafted or ratified in any democratic sense “by the population.” It was written and approved exclusively by members of the ascendant American bourgeoisie, and it is above all, a reflection of their own will and class interests.

A materialist analysis shows the inverse relationship between the rule of law and the foundation of society. As Marx explained, society’s ultimate foundation lies in its economic structure, constituted by its concrete forces and relations of production. And although there is a dialectical interrelation between “base” and “superstructure,” it is upon this foundation that arise the dominant ideologies of the era, including law and politics. These “ruling ideas are nothing more than the ideal expression of the dominant material relationships, the dominant material relationships grasped as ideas; hence of the relationships which make the one class the ruling one, therefore, the ideas of its dominance.” Simply stated, the legal forms in society cannot supersede its property forms.

As the judiciary’s highest body, the Supreme Court has the ultimate power to decide the meaning of words in any given context. This gives the “rule of law” the necessary malleability by which the outcome most beneficial to bourgeois class interests and rule can be secured. The court is a profoundly conservative institution, as the only formal limit to the judges’ discretion is precedent, that is, the court’s past decisions, which helps ensure the continuation of the status quo. This doesn’t mean, however, that the court will not disregard precedent altogether when it is in their interests to do so. If changed conditions and, above all, a changed class balance of forces necessitates this or that adjustment, they will allow some cosmetic changes—within the limits of bourgeois property relations.

The myth of the court’s independence

Bourgeois theory posits that the Supreme Court’s decisions are independent and above politics, because the judges are appointed for life, so they are not subject to electoral or other pressures. However, judges do not exist in a vacuum, divorced from their material and social context. Far from it.

Like all federal court judges, Supreme Court justices are nominated by the President and confirmed by the Senate. This means that no one can be considered for the position without first being handpicked by the President. The confirmation process then requires a majority vote in the Senate—itself a highly undemocratic body. After politicians from both capitalist parties have scrutinized and grilled the judicial candidate on all aspects of their life, background, and “judicial philosophy” or worldview to their satisfaction, they are usually, though not always approved. As a side note, credible sexual harassment and sexual assault allegations have not disqualified nominees, as the two judicial candidates who have faced such accusations remain on the Supreme Court to this day.

Of course, no candidate gets this far without having demonstrated an absolute allegiance to the bourgeois legal order. All except one of the current justices were federal appellate judges, which means not only that they had already gone through a similar vetting process, but that their judicial record since then is fully known. All except one served previously at the highest levels of the federal government’s executive branch, and half of them worked at some point in legal academia, whose role in society is to intellectually justify the legal framework for bourgeois property relations.

Marx’s observation that “it is not the consciousness of men that determines their being, but, on the contrary, their social being that determines their consciousness” is instructive here. By the time they are up for consideration, these individuals are naturally entrenched in their worldviews. They are not about to suddenly disavow the legal regime that they have spent their lives propping up and which is the source of their stature as individuals within bourgeois society.

A brief history of the court

Throughout its history, the Supreme Court has played a conservative role in relation to the social forces pushing against the system’s boundaries. It has made a limited handful of “progressive” rulings only after a decisive majority of the public already supported the position in question and only to halt the underlying social pressures from building further into a potential threat to the stability of capitalist rule—to tame rather than propel progress.

In 1857, when the horror of slavery was tearing society apart and leading inexorably toward civil war, the court sided with slaveowners in Dred Scott v. Sandford. It ruled that black people, even if free, could never be citizens and that because slaves were not considered humans but property under the fifth amendment, any law depriving a slave owner of such property was unconstitutional.

In 1873, the court gutted the 14th amendment “privileges and immunities” clause passed five years earlier to extend civil rights to former slaves, ruling that it only protected legal rights against the federal government and not state governments. This enabled southern states to codify a regime of racial segregation by imposing so-called Jim Crow laws.

By 1896, the enormous strides in civil rights for black people made during the Reconstruction era had been all but liquidated and replaced by Jim Crow. The Northern capitalists, having achieved their aim of replacing chattel slavery with wage labor, allowed the old slaveocracy to regain its foothold under a new guise. In Plessy v. Ferguson, the court expressly ruled that states’ racial segregation laws were constitutional.

The years from 1897 to 1937 have become known as the Lochner era. During these 40 years, the court issued numerous decisions striking down state and federal worker protection laws passed during the “Progressive Era” and the Great Depression, such as minimum wage and child labor laws. This period gets its name from the 1905 case Lochner v. New York in which the court held that a New York law limiting the workweek of bakery employees to no more than 60 hours was unconstitutional. Thus, the concessions that the capitalist class had been forced to grant the increasingly combative labor movement with its legislative hand were quickly taken away by its judicial hand.

In 1919, in Schenck v. US, the court upheld the conviction of the Socialist Party’s general secretary in Philadelphia for distributing leaflets urging young men to resist the draft during WWI, ruling that the First Amendment’s protections for freedom of speech did not apply in such a situation. This exemplifies the elasticity of the court’s power of interpretation.

In 1944, toward the end of WWII—a war allegedly fought, at least in part, to liberate persecuted ethnic minorities from concentration camps—the court upheld the federal government’s forceful removal and internment into concentration camps of 120,000 people of Japanese descent in Korematsu v. US.

Just ten years ago, in Citizens United v. FEC, the court held that the First Amendment right to free speech gives corporations the right to spend unlimited money on propaganda intended to influence the outcome of elections. Yet again, the power of interpretation serves the interests of capital.

These infamous decisions are reflective of the real role of the court throughout US history. The totality of its record provides unassailable proof that the Supreme Court has ever only served the material interests of the capitalist class. Workers have never had a stake in it and never will.

The myth of RBG

Despite the widespread belief that individual justices can sway the court in a progressive direction, history shows otherwise. An apt case study is “woke” hero RBG. Not only were RBG and celebrated conservative superstar Antonin Scalia “best buddies” (her words) outside the court—going to the opera, traveling the world, and spending every New Year’s Eve together for decades—but these supposedly polar opposite icons agreed in their court rulings 70% of the time.

In one of her last decisions, RBG—who defended Trump’s previous appointee, alleged sexual predator Brett Kavanaugh, and called him a “very decent, very smart” person—sided with the Trump administration’s efforts to speed the deportation of asylum seekers, depriving refugees of their day in court even if their deportation orders were flawed.

In a ruling made three months before her death, RBG voted to greenlight the construction of an $8 billion, 600-mile-long oil pipeline under indigenous Appalachian territory and national forests. This, at a time when climate change is ravaging the planet.

Around the same time, amidst the George Floyd protests, RBG, who called Colin Kaepernick’s peaceful protest of taking a knee “dumb and disrespectful,” joined the court in declining to reexamine the doctrine of “qualified immunity” which shields police from lawsuits in cases of police brutality and police murders.

So the next time someone tries to shame you into voting Democrat in order to ensure the “progressive nature” of the Supreme Court, remind them that serious workers ought to put facts before lore. The working class cannot rely on unelected judges—handpicked by capitalist politicians and interpreting laws written by and for the rich—to defend our fundamental rights or move society forward. We can only rely on our own strength, organizations, and institutions to protect and advance our interests.

The Supreme Court is a key pillar of capitalist rule and cannot be reformed into something that it is not. Once capitalism has been overthrown and consigned to the trash heap of history, the entire bourgeois legal system—including the court that stands at its pinnacle—will be on the pile of historical garbage along with it. In place of the bloated bourgeois apparatus, the workers will erect truly democratic and accountable organs to solve the problems of society.