The Supreme Court’s Long March towards the Republic of Gilead

The Republic of Gilead is a fictional destination of a crypto-fascistoid state – showing signs of becoming fascistic without yet being fascist – where religio-fundamentalism has mutated into a Divine Republic. The Republic of Gilead is part of Margaret Atwood’s dystopian novel, The Handmaid’s Tale (1985).

It is a hyper-totalitarian and cranked-up Puritanical regime that has taken over the United States of America. The Republic of Gilead was made possible after the US Supreme Court moved towards something US conservatives have loathed for the better part of the past fifty years: judicial activism. All that changed very suddenly once conservatives gained the majority of judges in the US Supreme Court.

For decades US conservatives rejected the judicial philosophy that argues that courts should go beyond the strict application of the law and consider broader societal implications in their decisions. Conservative judges have argued – for decades – that judges should never reach rulings based on their own views – but instead on a tight interpretation of the law.

Yet, within a few weeks this position of US conservatives was gone. The new judges on the Supreme Court reversed this position in the blink of an eye. It might be helpful to distinguish between “conservatives” (as in to conserve something) and reactionaries (as in turning back the clock).

What the new the US Supreme Court has done makes them not conservatives but reactionaries. These new judges no longer want to simply conserve society and preserve the current US legal system. They do not want to asphyxiate the status quo.

Instead, the new reactionary court is turning back time. They want to go back to a time “before” Roe v. Wade legalized abortion, for example. In politics, such a position – returning to a state of society as it was fifty or one hundred years ago – is known as a reactionary position.

It wants to re-establish past conditions by, for example, ending Roe v. Wade, even when this collides with much cherished ideas such as this is a free country and individual freedom. And by supporting the much hated Nanny State that regulates abortion but not guns, telling people what they can and cannot do. All this – and more – no longer matters.

And it all began with Donald Trump. During his term of office from 2017 to 2021, he – including his radical friends –brought the Constitutional Court into its current formation. During his one term in office, Trump appointed a whopping three of the current judges: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

It is often forgotten that the US Supreme Court has been fundamentally repositioned and – and this “and” is important – Trump’s apostles have also reoccupied crucial positions on the federal appeals courts. These courts are responsible for correcting errors made by other courts.

Worse, under Trump, the pre-selection of candidates for national courts was outsourced to the arch-conservative Federalist Society. For the ultra-right, these developments represent a historical stroke of luck. The Supreme Court can now be used as a lever for political interests and reactionary positions. It can re-shape and establish a cultural, legal, and power-political position. Republicans have been fighting for this for a very long time – by nearly all means possible. Their reactionary wet dream has now come true.

It is absolutely no coincidence that the recent decision of the US Supreme Court signifies its new, reactionary position. Today, the court  appears regressive, at least from an enlightened point of view. The court even sees itself as a force to re-install a post-secular and post-pluralistic society. It is also no coincidence that it all occurs during the time of the events around January 6, 2021, and the storming of the Capitol by Trump’s henchmen. Hearings on this event have been held to reconstruct and clarify the role of Trump during the semi-fascist actions that took place on a day that tarnished the USA worldwide.

Both the developments – the US Supreme Court and the January 6, 2021, events – can be understood as an expression of a deep-seated constitutional crisis that has led to the destabilization of American democracy. This constitutional crisis demonstrates the erosion of the structural and institutional framework that stabilizes and legitimizes the US political and legal system.

It might be borne in mind that the new reactionary majority of the US Supreme Court did not “directly” abolish the right to an abortion. Instead, the reactionary decision-making power has – rather cleverly – handed that power over to individual states. They knew full well that many of these individual states have now – very effectively – abolished this right. Now it is: we decided you must go through pregnancy, but once the child is born, we no longer care. You will get no free childcare, you may not have free schooling, there will be no free university, next to no social, institutional, and financial support, and so on.

From the point of view of the self-appointed so-called guardians of the Constitution, their reactionary decision represents a genuinely democratic decision, particularly since the US Supreme Court by its ruling wants the issue of abortion to be returned to the American people and their representatives.

It remains imperative to note that several critical elements of the constitutional order and the current political situation of democracy become visible. Firstly, the court clearly takes a political side – the reactionary side. The US Supreme Court did this without making any political compromise possible. Instead, it further radicalized its positions of raw power. Secondly, on the basis of the provisions laid down by the US Supreme Court itself, the court shows that it is indeed unwilling to incorporate social provisions into the constitutional order.

The consequences of the Uber-politicization of the US Supreme Court have been visible for years. According to a recent Gallup poll, only a quarter of US citizens have confidence that the US Supreme Court will make fair and just decisions. This will further decline, given the fact that abortion is supported by a clear majority of Americans. Meanwhile, those who want to make abortion illegal are an ever-shrinking cohort.

In addition, the leading politicians of the Democrats, such as Senator Elizabeth Warren, have started to publicly deny the US Supreme Court’s legitimacy as it descends into the morass of right-wing extremist ideologies. As a consequence, the hope that the court represents an institution that can be recognized – at least in principle – by all actors in the public discourse has dried up, if not destroyed from the inside.

Thanks to Trump’s court, any authorities based on a shared tradition of a political-institutional framework have vanished into thin air. The legitimate question remains: how are people supposed to trust the highest-ranking legal institution when even the politicians they have elected do not or do not any longer and it makes decisions contrary to the will of the majority of Americans?

This has – and will have long into the future – severe consequences. One consequence will be that – next to rising polarization – no debates will be held in which participants have to explain their positions so that voters know where they stand. Instead, this is the start of the US Supreme Court’s very own Kulturkampf, cranking up a right-wing extremist culture war against modernity.

Increasingly, this will be defined by extreme views. In the future, this will apply even more to those entering the political, the legal, and constitutional system as well as virtually all democratic institutions of the USA. Their ultra-reactionary Kulturkampf is also designed to destroy – or at least hamper – the political freedom of people acting in democratically elected legislatures. Instead, unquestioned – and religious fundamentalist – views will undermine confidence in political agreements even more. Polarization will be replaced by bipartisanship to an even greater extent than it already has.

It is fitting that the driving force behind some of the worse court decisions – Clarence Thomas – means that these judgments are not only legally, but also morally, questionable. With this, US judges measure themselves no longer by their ability to decide what is right and wrong but what is good and evil.

The fundamental religious and crypto-moralistic positions that are now emerging as a result of the recent decision of the US Supreme Court can indeed be characterized by an impending cruelty that is meted out to women. This is a new world where pre-modern religious groups are rulers.

The approach that some US states have on forced pregnancies – often coming through state administrations – testifies to authoritarian attitudes that are reminiscent of Old Testament fantasies of punishment – particularly of women – under the twisted madness of Christianity.

It is rather fitting that Texas has decided to issue fines of up to $10,000 against doctors, nursing staff and even against those who take someone to an abortion clinic. Much of this is driven by religion.

Phil Bryant, former governor of the state of Mississippi and one of the few who welcomes the ruling of the US Supreme Court, recommended in an interview with NPR  that women who see the ruling as a robbery of their physical integrity, their autonomy, and their freedom, need to kneel and pray to God … that’s what I would tell them. Pray hard.

The abysmal thing about this passage of his interview – representative of the right-wing religious conservative current – is not the immoral position of the ex-governor. The frightening thing about this is the Taliban-like, religious-paternalistic attitude towards presumably irresponsible women. An attitude that old, white, religious men have been conjuring up for hundreds of years: women are animal-like creatures, evil witches having direct sexual relations with Satan. Some may even date back to Adam and Eve, where Eve gets all the blame.

This comes from the mouths of some of the highest-ranking politicians of the US state of Mississippi. Worse, they are unable and unwilling to find a genuine political solution for young people who refuse to follow their position. Instead, praying is recommended.

To interpret this as the destruction of real political freedom seems justified. Politicians like Byrant seem to come from an ancient time – known as the Dark Ages – when secular political discourse wasn’t detached from its religious roots. Ironically, this contradicts the very American understanding of federal states in which church and state are strictly separated. Unlike a Taliban-run Al-Qaeda state dedicated to extreme Islamic fundamentalism, the USA isn’t governed by one particular religion – yet!

On an institutional level, the direct appointment of Supreme Court judges by a president has led to the fact that judges – appointed for life – have become a political instrument of the two parties. As a consequence, judges can no longer establish themselves as an independent voice but function as an appendix to polarizing power plays.

Yet, it is a core characteristic that the US Supreme Court represented a neutral function – until Mitch McConnell ended it. Problems arise at this very core when the basis for decision becomes the reactionary culture war’s friend-enemy dictum as laid out – perhaps originally and most comprehensively – by Nazi law professor Carl Schmitt. Increasingly, Schmitt’s ideology of the political enemy must be destroyed has been adopted in large parts of US politics – and now very powerfully by the US Supreme Court.

Virtually all of this no longer occurs in the spirit of checks and balances. Increasingly, judges are selected – from the outset – according to which political side they belong to. This potentially leads to the discourse of legal arguments being reduced to that of pure politics and power.

This also makes clear that those appointed cannot escape the power dynamic. They speak as a person and no longer as a judge. Just remember Brett Kavanaugh’s personal revenge on Hillary Clinton. Kavanaugh’s attitude sums up – ironically – what is now occurring, you have sown the wind for the next decades. This turned out to be the evil truth as well as a right-wing message to the Democrats.

One can assume that the US Supreme Court will not have to deal with this problem because it has the security of a 6-to-3 majority. One might argue it is six against sixty million – an assumed number of people who, for example, feel strongly enough about the taking away of a fifty-year-old right to safe abortion that they will not only complain, but also act against the injustice meted out by the reactionary court.

Perhaps worse for the religio-reactionaries of the US Supreme Court, about half of all abortions are carried out by medications. These medications can be obtained via the Internet. It is possible to imagine that the Internet will beat the American religious right – at least partially. Yet, a black market will also emerge. And so will legal uncertainty and the criminalization of women [again] and medical practitioners. The problem will be how individual states apply, control, and (police) enforce such laws and how to solve the interstate problems.

The consequence is that many people might not be able to follow state-based legal procedures that vary only a few miles from each other. Others will see the entire affair as a cynical power play engineered by the radical right. Some might realize that this is about a fundamentalist minority imposing their religious beliefs not just on their own group but on as many Americans as they can.

The fact is that there are almost no social welfare state principles laid down in the American Constitution that signify a modern society. Instead, the constitutional document is an out-dated pre-steam-engine coach-and-candlelight document from a time when electric lights did not exist! This makes it easier for the Supreme Court to disregard the social consequences as well as effects on social peace. The reasoning of the reactionary judgment is almost completely deprived of all that.

This means that the decoupling of the Constitution and the welfare state – an arch-conservative ideology – will result in a society that will fall further behind the actual developments of a modern state. In other words, the USA will fall further behind the extensive regulatory networks that exist in comparable OECD countries.

Worse, some women and families who have financial resources, who have a higher level of education, or who live in university cities will have a much easier time finding alternatives or traveling to where abortion is still possible. As so often, reactionary ideologies will hit the poorest the hardest – US abortion rights are no exception.

In the future, the poorer sections of society will find it ever more difficult to find alternative ways to get help – particularly when the nearest clinic offering an abortion is 750 miles away. The court’s decision – just as planned, intended, and orchestrated – will have in particular a negative effect on African American women. It is already the case that Black women have a maternal mortality rate about two and a half times that of white women. This will get worse.

It is somehow fitting that at a very well-attended election event with former President Trump, the right-wing Republican Congresswoman Mary Miller spoke – accidentally the truth – when she called the court ruling an historic victory for the lives of whites. The authoritarian Republic of Gilead – as envisioned by the new authoritarian US Supreme Court – has no time for non-whites.

This article was originally published here.

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