Tonight, at 9 pm Eastern, President Donald Trump will announce his pick to replace Justice Anthony Kennedy on the Supreme Court. Will it be Brett Kavanaugh, beloved by establishment Republicans for his rulings against the Affordable Care Act? Amy Coney Barrett, whose Catholic faith and uncompromising social conservatism have made her a favorite among Christian conservatives? Raymond Kethledge, an outdoorsman who managed to charm Trump in his interview?
Which judge Trump chooses is less meaningful than the fact that Trump is choosing a second justice at all. The first seat Trump filled opened under Barack Obama, but Senate Republicans refused to consider any replacements, hoping to win the 2016 election and see the seat filled by a Republican. Mitch McConnell’s bet paid off: Trump did win that election, though he lost the popular vote decisively, and Neil Gorsuch was named to the Court.
Such appointments are becoming the norm. With Kennedy’s replacement, four out of the Supreme Court’s nine justices — all of whom have lifetime tenure — will have been nominated by presidents who won the White House, at least initially, despite losing the popular vote.
There’s nothing necessarily wrong with that. America, for all its proud democratic rhetoric, is not actually a democracy. Until and unless the country chooses to abolish the Electoral College, it will remain not-quite-a-democracy, with all the strange outcomes that entails. Liberals may complain, but the rules are the rules, and both sides know what they are.
But the Supreme Court’s conservative bloc doesn’t just reflect the outcomes of America’s undemocratic electoral rules; it is writing and, in some cases, rewriting them, to favor the Republican Party — making it easier to suppress votes, simpler for corporations and billionaires to buy elections, and legal for incumbents to gerrymander districts to protect and enhance their majorities.
The Supreme Court has always been undemocratic. What it’s becoming is something more dangerous: anti-democratic.
“This was the worst year I can remember for voting rights”
Dahlia Lithwick, Slate’s legal analyst, has been covering the Supreme Court for 20 years. She’s the smartest and most humane Court-watcher I know. And she sounds depressed.
“This was the worst year I can remember for voting rights,” she told me. “Folks who are going to go to the polls in 2020 and 2022 and going forward will have even less political power than they had. This conservative, five-justice bloc is distorting electoral politics to make it even harder to be represented.” (You can hear our whole conversation here, or by subscribing to my podcast.)
What we’re seeing here is an alliance, not a coincidence. Republicans won the White House and the Senate, used that power to appoint judges to the Supreme Court, and the judges they vetted and elevated are making it easier for their patrons to retain power in the future.
Yes, that’s a grim, cynical analysis. But is it wrong? Consider some of the decisions the Court made just this term:
In a 5-4, party-line opinion, the Court upheld Ohio’s voter purge, which controversially strikes voters from the rolls if they don’t vote for two years and then fail to respond to a mailed questionnaire or vote in another election for four years.
Though the policy was tied up in legal battles during the 2016 election, in 2012, 1.5 million Ohioans were mailed the questionnaires that could lead to them being purged, and more than 1 million failed to respond. To put that in perspective, Trump’s 2016 margin in Ohio was 446,841 votes, and Obama’s 2012 margin was merely 166,214 votes.
(The Court’s endorsement of Ohio’s law is expected to reverberate far beyond the Buckeye State. “At least a dozen other politically conservative states said they would adopt a similar practice if Ohio prevailed,” NBC News reported.)
In another 5-4 case, the Court largely refused to strike down a series of racial gerrymanders in Texas that a San Antonio district court said denied Latinos “their opportunity to elect a candidate of their choice.” Justice Sonia Sotomayor’s dissent was blistering. “This disregard of both precedent and fact comes at serious costs to our democracy,” she wrote. “It means that, after years of litigation and undeniable proof of intentional discrimination, minority voters in Texas—despite constituting a majority of the population within the State—will continue to be underrepresented in the political process.”
In the Janus case, where the Court’s five Republicans overruled a 1977 Supreme Court opinion, as well as the laws on the books in 22 states, to gut a key funding source for public-sector unions. If you read the majority opinions in the above cases, you’ll see the Court’s Republican Justices repeatedly suggesting they need to ignore a plethora of relevant facts, comments, and history in order to give due deference to federal and state legislators. That deference dissolved in this ruling, with the Court deciding this question could no longer be left to voters or lawmakers. The decision weakens a powerful Democratic interest group, which is one reason Republicans have fought so hard, for so long, for a judgment like this. The Court, wrote Justice Elena Kagan in an angry dissent, has become “black-robed rulers overriding citizens’ choices.”
The Court refused to set limits on even extreme cases of partisan gerrymandering, sending multiple gerrymandering cases back down to lower courts, at least for now. These rulings were more technical, and less partisan, but they dashed the hopes of those who believed the Court might finally step in to set limits on how aggressively politicians could choose their voters and harden their majorities. Though the Court held open the possibility of revisiting this issue if brought to them in another way, since Kennedy was the key swing vote, the future of these challenges looks grim.
And, again, these are just cases from the last term. A fuller accounting of the Court’s electoral interventions would include the 2000 Bush v. Gore case (which Justice David Souter believed so “crudely partisan” a decision he considered resigning); the constellation of decisions emanating from Citizens United, which have allowed corporations and billionaires to dump literally unlimited amounts of money into elections; and the 2013 gutting of crucial provisions of the Voting Rights Act, which has already had disturbing consequences.
“Whatever mythology existed around the idea that the Court wasn’t pure power and pure winners and losers is gone,” says Lithwick.
An anti-democratic Supreme Court in an undemocratic America
All this is coming in the context of a political system that is becoming less and less representative of public opinion. Since 2000, 40 percent of presidential elections have been won by the loser of the popular vote; the Senate, due to its small-state bias, has a Republican majority despite the fact that more Americans voted for Senate Democrats in 2016 than Senate Republicans; and in the House, due to both gerrymandering and geography, Democrats are projected to need to win the popular vote by around 7 points (or as much as 11 points) to take back control of the chamber.
Demographers project American politics will become even less democratic in the coming years. By 2040, 70 percent of Americans are expected to be represented by a mere 30 senators, which means 30 percent of the population will control a 70-vote supermajority in the Senate.
The Supreme Court is meant to be insulated from democracy. It’s not meant to be a partisan tool for undermining democracy. What’s emerging now is a dangerous loop, in which Republicans barely holding onto power manage to keep control of the Supreme Court by any means necessary, and in return, the Supreme Court’s Republican appointees issue rulings to help their party cling to political power.
In the long term, that’s bad for the country’s unity and the Court’s legitimacy. Already, frustrated liberals are beginning to discuss packing the Court — after McConnell’s refusal to give Garland a hearing, it’s hard to argue that there are any norms or limits left on the war for judicial power. And even those most invested in the Court’s grandeur are finding it hard to defend its reality.
“One of the paradoxes that I always noticed in the Supreme Court press corps,” says Lithwick, “was we do believe this fiction that the Court is completely apolitical — except that we don’t, because we are careful to say ‘appointed by a Republican.’ We live on the seam of the two realities. We really do believe in order to do our jobs that what the Court does is different from raw politics. And yet we’re not stupid. We were there for Bush v. Gore. We know how this shakes out.”
“At what point,” she continued, “do I throw up my hands and say, ‘Okay, let’s do away with lifetime tenure, because this whole thing is pointless?’ In which case, I should just be a White House correspondent, right?”