The Supreme Court's War on Democracy
The Roberts Court has repeatedly helped Republicans win elections, they may do it again
A 6-3 conservative court with ideologues like Amy Coney Barrett and Brett Kavanaugh is a threat to every substantive issue that progressives care about — access to health care, climate change, and reproductive freedom just to name a few. However, the biggest threat the court poses may be to the very idea of democracy.
Long before Mitch McConnell and Donald Trump were shrinking and then packing the courts with unqualified Right Wing hacks, the Supreme Court was at war with American democracy with the express purpose of making it easier for Republicans to win elections. If Joe Biden wins this election, we should expect the Supreme Court to become an even more aggressive advocate for the Republican Party. We should expect this, because that’s exactly what happened in the recent past. And it’s why progressives should not take comfort in the recent moderation of Chief Justice Roberts nor should they take their eye off the ball if there is a positive ruling in the pending case about the Affordable Care Act.
The idea of an independent and impartial Supreme Court should have died the day a 5-4 conservative court intervened to stop the Florida recount to hand the Presidency to a Republican. Bush v. Gore may be the most famous example of the court putting their thumbs on the scales of justice for the Republican Party, but it is just one of many. The Roberts court in particular has responded to every Democratic success with a landmark ruling to make it easier for Republicans to return to power.
The Obama Grassroots Money Machine and Citizens United
Republicans dominated political fundraising for a number of election cycles. That all changed when the 2008 Obama campaign built a grassroots money machine that blew the Republicans out of the water. John McCain and the Republicans could not keep up. Their traditional fundraising apparatus was no match for Obama’s Internet army. After the election, there was panic in the Republican ranks. Karl Rove, the former Bush political strategist, sounded the alarm in the Wall Street Journal:
A state-by-state analysis confirms the Obama advantage. Mr. Obama outspent Mr. McCain in Indiana nearly 7 to 1, in Virginia by more than 4 to 1, in Ohio by almost 2 to 1 and in North Carolina by nearly 3 to 2. Mr. Obama carried all four states. Mr. Obama also used his money to outmuscle Mr. McCain on the ground, with more staff, headquarters, mail and a larger get-out-the-vote effort.
The Republicans had no chance of competing with Democrats financially. It would take multiple elections to build up an email list to compete with Obama. Little more than year after Obama’s victory, the Supreme Court rescued the Republican Party.
In a 5-4 opinion in the Citizens United case, the Court ruled that individuals, corporations, and other entities could spend unlimited money in political campaigns. The financing of political campaigns changed forever. The result was exactly as the court intended. The Republicans — fueled by billionaires like Sheldon Adelson and the Kochs — outspent the Democrats in the 2010, 2012, and 2014 elections.
Just last week, Adelson responded to a surge in grassroots fundraising by Joe Biden by giving $75 million to a Republican Super PAC working to elect Donald Trump. The decision in Citizens United surprised many legal observers because it was a reversal of the Court’s position in McConnell v. FEC from just a few years prior. The only thing that had changed in politics is that Democrats were now raising more money than Republicans.
Voting is a Right for Us, a Privilege for Everyone Else
Republicans were shocked when Obama was reelected. High on their own supply of Fox propaganda and convinced in the efficacy of their newly passed voter suppression laws, they were sure that Romney would win. Not only did Obama win. He won by a lot. It was an electoral thrashing fueled by sky high turnout out from Black and Latino voters. The demographic doomsday that the lily White Republican Party had long feared arrived far sooner than anticipated. The Republicans feared they would be locked out of political power for a generation or more.
Once again, John Roberts and the Supreme Court came to their rescue. In 2013, the Supreme Court gutted the Voting Rights Act in Shelby County v. Holder. Chief Justice Roberts based the decision on the absurd premise that racial disparities no longer exist in voting and therefore we no longer need laws to prevent racial disparities in voting. Roberts’ argument is equivalent to saying there are very few polio cases therefore we no longer need the polio vaccine.
The impact of Shelby County has been just as Roberts and the Republicans intended. It led to a series of laws passed by Republicans to make it harder for the Black and Latino community to vote. As Vann Newkirk wrote in The Atlantic a few years ago:
The Shelby County decision gutted federal oversight over elections rules in areas where it had, arguably, been most effective. Absent that federal oversight, Republicans in the South seemed bent on proving just why it was necessary in the first place. They passed a slate of new voting laws that likely would have been blocked just days before. North Carolina Republicans led the way. Although less than half of North Carolina’s counties were covered under the original formula, preclearance would have been enough of a legal hurdle to make some proposed bills to eliminate early voting, establish voter ID, and end same-day registration—like the ominously-named 2013 Senate Bill 666—a nightmare to implement.
Republicans cannot win if voters of color turn out to vote at high levels, so the Court made it easier for Republicans to suppress that vote. It’s highly unlikely that Donald Trump is President if the Voting Rights Act was still in place.
Locking in Gerrymandering
The Supreme Court paved the way for Republican power by green lighting billionaires buying elections and allowing racially targeted voter suppression laws. In a 2019 decision, they made it much harder for Democrats to remove Republicans from power.
In yet another 5-4 decision, the Supreme Court ruled in Rucho v. Common Cause that partisan gerrymandering was an issue for voters to decide, not the courts. Put another way, the Supreme Court ruled that if you don’t like gerrymandering, vote out the people who did the gerrymandering, which is super hard to do because of gerrymandering. The five Justices that put their name on this ruling are either very dumb or partisan Republicans. The timing of this decision was also not an accident. It came one year before the election that would decide who drew the legislative maps for the next decade. In many states, Republicans can’t win unless they rig the game, so once again the Supreme Court helped them rig the game.
What’s Next?
Before I get to what happens with the Court after the election, I don’t want to lose sight of what the courts are doing right now to help Republicans win. Take Back the Court, a pro-court expansion group that I work with, has put together an “Anti-Democracy Scorecard” to track how judges have ruled in election-related cases this year. According to the scorecard, Republican appointed judges have ruled against making it easier to vote 80 percent of the time compared to 37 percent of time by judges appointed by Democrats. In other words, the system is working exactly as Mitch McConnell and Donald Trump intended.
If Joe Biden wins, Democrats must prepare for another assault on democracy designed to help the Republicans regain power as soon as possible. The version of the Court that Biden will be dealing with will be even more pro-Republican than the one that made the decisions discussed earlier. Gorsuch, Kavanaugh, and Coney Barrett are very political actors and Kavanaugh has already pledged vengeance against Democrats. According to Vox’s Ian Milhiser, the Supreme Court is planning to hear two consolidated cases that could deliver a death blow to what remains of the Voting Rights Act:
It’s difficult to exaggerate the stakes in Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee. The cases involve two Arizona laws restricting the right to vote. One law requires ballots cast in the wrong location to be tossed out, while the other prevents individuals from delivering another person’s absentee ballot to the elections office. But as these cases arise under the Voting Rights Act — a seminal law preventing racist voting laws, that the Supreme Court has already weakened considerably — they provide a conservative-majority Supreme Court the opportunity to dismantle what’s left of the Voting Rights Act.
I recommend you read the entire article to understand what it at stake in these cases and the devastating impact of an adverse decision.
What Can We Do About It.
My goal is not to scare you or make you feel hopeless. Far from it. I want as many Democrats as possible to understand that Republicans are maintaining power despite representing fewer people by breaking our democracy. Democrats need to fix our democracy and we can’t do that without fixing our courts.
We can’t fix the courts, if we don’t win this election. If you haven’t done it yet, go adopt a state, donate to Senate candidates or volunteer to help Joe Biden. You can also support legal efforts to fight back against voter suppression by donating to the Democracy Docket Action Fund.
In the long run, the best solution is a robust court reform package that includes adding justices to the Supreme Court, putting term-limits in place, implementing a code of ethics, and expanding the lower federal courts. (If you agree with me about adding justices, please consider supporting Take Back the Court) There is some disagreement in the party about the substantive and political merits of these ideas. But if we even want to have that conversation, we must elect Joe Biden and a Democratic Senate. If we don’t, the Republicans and the Supreme Court will do every thing in their power to lock Democrats out of office for a very long time. Just as they have done in recent cases.
In a little more than two weeks, we can begin the process of repairing our democracy. If we don’t, it may be too late.
Thank you for sewing it all together so neatly; I haven’t wanted to drink at 9 am in a long time.
If we win back the senate, other than some whining and false equivalency, what does the GOP do in response? Is there a danger of the GOP filing suit against the reforms in the same pellet blast style that’s used against Roe? Filing every suit they can think of in every state until they find a way in?
There’s a persuasive argument they can make to the electorate about cheating when their suits get filed only in jurisdictions where newly appointed/democratic appointed judges will reject or rule against them. It wouldn’t be about facts (again) but how you can sell that.
Is there a remedy to that? Or do we just batten down the hatches?
Thank you for tying these court cases together to tell such a clear, compelling story. There's an equally alarming pattern on voting rights cases in appellate courts, many populated with new Trump-nominated majorities. Hence Mitch McConnell's blockade of President Obama's circuit court nominations. It wasn't just Merrick Garland.
If a (knock on wood) Biden administration and Democratic-controlled Congress decide to move forward with any of the court reform proposals you mention, it's going to be really important to present them in a context that most ordinary voters can understand and appreciate. R's will engage in their usual projection, labelling them as evidence of D brute political calculation. If all we can say is "well you did it, so..." we'll fall into their trap.
Ironically, I think we're fortunate that Joe Biden has expressed skepticism on these ideas. He'll need to be convinced by something more than political tit-for-tat. That should help with the court of public opinion.