When Workers Won the New Deal and Beat the Supreme Court

For inspiration, we can look to the labor movement of the 1930s. Just like today, conservative Democrats and a conservative Supreme Court blocked progress. As socialist activist and scholar Mike Davis explained, it was mass action by

millions of rank-and-file Americans who sat down in their auto plants or walked on freezing picket lines in front of their factories . . . [that] made the New Deal possible. They provided the impetus to turn Washington to the left.

Today we think of Franklin D. Roosevelt as a progressive leader who built the New Deal, giving US workers union protections and a modest welfare state. But this was not Roosevelt’s intent when he won the 1932 election at the height of the Great Depression. Mass unemployment, strikes, and protests prompted Roosevelt’s “First New Deal” in 1933, including some limited but meaningful unemployment relief as well as toothless, employer-friendly labor legislation. This fell far short of what was necessary to end the crisis and prevent future ones.

It was only in the context of mass mobilizations of millions starting in 1934 that Roosevelt and his allies overcame Senate filibusters (including by securing Republican votes to make up for conservative Democratic opposition) and passed the “Second New Deal” reforms, including relief and jobs programs, the Social Security Act, and historic labor legislation, the National Labor Relations Act (NLRA). This second wave of legislation created what we now think of as the New Deal welfare state.

But in 1935–36, a conservative Supreme Court majority — appointed before the political currents pulled Roosevelt to the left — ruled major progressive legislation unconstitutional, including the National Industrial Recovery Act, a major farm relief bill, and a New York state minimum-wage law. New Dealers feared that the court would next strike down Social Security and the NLRA (which had until then been barely operative because the court’s anti–New Deal campaign encouraged employer noncompliance).

Things changed by 1937, when growing rebellion pushed Roosevelt and the federal government to act. In 1937 alone, the Bureau of Labor Statistics (BLS) recorded 4,740 strikes involving almost 2 million workers out of about 54 million people employed in the United States. While the battles like the Flint autoworker sit-down strike raged in early 1937, Roosevelt threatened to appoint new Supreme Court justices, or “pack the court,” to defend progressive legislation. Roosevelt’s legislation never passed, but faced with popular upheaval and a presidential takeover, that spring, the court began upholding New Deal legislation like the NLRA.

To overcome a reactionary Supreme Court and a filibustered Senate, it’s not enough to simply elect a Democratic president and Congress. Today’s Democratic federal government likewise won’t defend our rights unless a mass movement makes them.

Mass Action Against “States’ Rights”

If Democrats do succeed in passing federal abortion or gun control legislation, we know that conservative states won’t go along quietly. The history of the civil rights movement in the twentieth century shows that it takes mass action to both win our legal rights and then force conservative state-level governments to honor them.

In the 1950s and ’60s, neither Republican nor Democratic presidents wanted to alienate Southern white voters by using federal power to protect African Americans’ civil rights. As with the New Deal, civil rights victories over the Jim Crow system of racist segregation were won by mass mobilizations of “rank-and-file Americans” in the face of brutal repression.

Early civil rights mobilizations in the 1950s, including the massive, yearlong Montgomery bus boycott that made Martin Luther King Jr a major national figure, pushed the Supreme Court to rule against segregation in schools and public transit. But pro-segregation Southern Democratic governors, backed by a quasifascist alliance of local police, white business leaders, and Klu Klux Klan terrorism, blocked integration for years. Like Jim Crow’s defenders, reactionaries today are using the “states’ rights” rationale to attack abortion and other fundamental rights in the twenty-first century.

Nevertheless, direct action by massive numbers of civil rights activists pushed both Republican and Democratic presidents to repeatedly call in federal troops to enforce integration. In the late 1950s, Republican president Dwight Eisenhower had to call in a thousand US Army soldiers from the 101st Airborne to occupy Little Rock, Arkansas, and protect the nine black students — who insisted on integrating Little Rock Central High School with the support of local civil rights activists — from a racist riot. Likewise, Democratic president John F. Kennedy, elected in 1960, tried to stay out of Southern civil rights struggles — until the movement forced him to send 13,000 federal troops into Mississippi to quell a deadly riot against the integration of the University of Mississippi.

Kennedy told civil rights leaders afterwards they should focus on voter registration instead of disruptive campaigns against segregation. But following years of sit-ins, freedom rides, and a bloody campaign against segregated stores in Birmingham, Alabama, in the spring of 1963, Kennedy finally pursued anti-segregation legislation. Images of Birmingham police attacking black schoolchildren with fire hoses and dogs then throwing them into jails became an international embarrassment.

While Kennedy had spent two years trying his best to “avoid the issue,” writes historian Kevin Boyle in his history of the 1960s, The Shattering, the Birmingham events “swept away the middle ground.” Kim Moody argues that even before the iconic March on Washington in August of 1963, Kennedy was forced to support civil rights legislation by “the explosion” in Birmingham and the “over nine hundred civil rights actions in 115 cities involving the arrest of some twenty thousand demonstrators” that followed. Kennedy himself said that these protests “had brought results, they had made the executive branch act faster and were now forcing Congress to entertain legislation which a few weeks before would have had no chance.”

But the fight didn’t end there, since the 1964 Civil Rights Act didn’t include protections for voting. Historian Gary May recounts how the new president, Lyndon B. Johnson, met privately with Martin Luther King Jr to urge him to delay a Selma, Alabama, campaign for voting rights so as not to alienate Southern Democrats (the “Dixiecrats”) in his coalition. The president needed their votes to pass other legislation and told King, “I can’t get [voting rights legislation] through. . . . It’s just not the wise and the politically expedient thing to do.”

The Selma campaign moved ahead anyway, changing Johnson’s calculation of what was “expedient.” The effort to register black Alabama voters prompted severe repression by white supremacists, local police, and the Alabama state troopers under the direction of Dixiecrat governor George Wallace.

On February 18, troopers shot and killed black activist Jimmie Lee Jackson outside of Selma. Video footage of troopers beating and gassing peaceful protesters marching for Jackson became an international scandal, drawing hundreds of supporters from across the country into Selma. On the night of March 9, 1964, white supremacists attacked a group of white Unitarian-Universalist ministers and hit Boston minister James Reeb in the head with a club so hard that he died two days later. Outraged supporters mobilized across the country for voting rights and racial justice, with 15,000 marching in Harlem, 15,000 in Washington DC, and 25,000 in Boston.

Johnson soon announced his support for voting rights legislation, working overtime to push what became the 1965 Voting Rights Act over a Senate filibuster. Like his two predecessors, Johnson also sent in federal troops (and took direct control of 1,900 Alabama state troopers) to finally protect the Selma demonstrations he had hoped wouldn’t happen.

Our rights today are under attack by a coalition of Republicans and conservative Democratic senators like West Virginia’s Joe Manchin, the Supreme Court, and Republican state governments. Despite having a Democratic Congress, leading Democrats like Biden lack both the political will and the social power to fight these forces and win. The civil rights movement suggests some lessons for how to fix that.

The Road Ahead

The American political system is exceedingly undemocratic. Nine Supreme Court judges appointed for life can void laws at will. The US Senate is so unrepresentative of the population that the 40 million people in the twenty-two smallest states get forty-four senators while California’s 40 million only get two. And the Electoral College allowed two of the last four presidents, George W. Bush and Donald Trump, to take the White House despite losing the popular vote. Ultimately leftists and progressives should fight for a new, democratic, and egalitarian constitution, like the one that Chileans might soon have after a mass uprising in 2019 prompted a constitutional convention.

But to defend rights like abortion now, Democrats already have more power to act than they’d like you to think. The Biden administration can do more through executive orders than they have so far, and as Representative Ocasio-Cortez points out, the Democratic Congress could pass legislation protecting abortion rights, repeal the Hyde amendment that bars the use of federal funds for abortion, restrict the Supreme Court’s powers, or “pack the court.”

But if we want Biden to be the “new FDR,” we need to rebuild the kinds of mass movements that forced politicians like FDR to act in the twentieth century.

To break the filibuster today, for example, progressives from across the country could help build protest and electoral efforts in West Virginia and Arizona against conservative Democratic senators Joe Manchin and Kyrsten Sinema, who have blocked what progressive legislation the Biden administration has proposed by upholding the filibuster. Massive and illegal teacher strikes beat the Right in these states in 2018.

Activists can also “aid and abet” illegal abortions and challenge the legitimacy of abortion bans by helping distribute safe and effective abortion pills. Liberal cities in some red states are declaring their intent to defy their states’ abortion bans and establish abortion “sanctuary cities.” Organizers should rally to defend such cities and clinics and thereby force Democratic leaders to pick a side: defend abortion now or face international embarrassment from news footage of handcuffed providers, patients, and protesters being dragged into police vans.

In Washington, DC, San Francisco, New York, and elsewhere, the movement could pressure leading Democrats to endorse this defiance and support challenges to Manchin and Sinema pending the end of the filibuster. Bernie Sanders and Ocasio-Cortez are uniquely positioned to call for such a national mobilization while leading the charge inside Congress.

One challenge, however, that movements face today is the absence of the ecosystem of mass organizations that sustained and deepened movements in the twentieth century. In their place has grown a “nonprofit industrial complex” that subordinates movements to foundation funding, professional staff, and tepid lobbying. Organizers today should aim to build fighting, grassroots movement organizations like the Southern Christian Leadership Conference (SCLC), the Congress of Racial Equity (CORE), and the Student Nonviolent Coordinating Committee (SNCC), which led repeated direct actions and mass mobilizations against Jim Crow. These groups, too, were nonprofits and had to balance tensions that arose between their nonprofit status and commitments to mass action. But they figured out how to become fighting mass protest groups, and we can too.

We also need to reckon with the limits of twentieth-century movements, which were never able to cohere disparate campaigns into a permanent, mass political party of and for the working class. Twentieth-century movements were frequently absorbed into the capitalist-backed Democratic Party instead of building independent political power. Democrats’ strategic and tactical conservatism restricted the range of motion in unions and social movements that committed to being well-behaved “coalition partners” inside the Democratic Party. In the long run, we need a new party not only to defend past gains but to win more transformative changes in our political and economic system. For now, leftists and leaders like Sanders and Ocasio-Cortez should aim to build a membership-based political organization to deepen their independence and expand their class-struggle politics.

Older movements can’t provide an exact blueprint for today. But the history of how democratic rights were won in the twentieth century provides a strategic North Star that will serve us well in the twenty-first: a faith in the power of mass action by ordinary Americans.