On a blustery November day, I found myself on the Boston Common with what turned out to be a very small group of protesters. Our view was that Al Gore, who had clearly gotten more votes than his opponent, should be seated as the next president of the United States.
It didn’t happen, and in fact, the line of argument we pursued — that democratic legitimacy ought to count for something — wasn’t even taken up by the Gore campaign or Democrats. They instead pursued a legalistic argument that was denied by a 5-4 majority of conservative Supreme Court justices. Two decades later, we’re staring down the barrel of exactly what I worried about that November: not an old Constitution with some funny quirks, but a self-reinforcing spiral of minority rule.
It’s time to start doing something about it.
Hardball on a tilted playing field
When Supreme Court Justice Antonin Scalia died in February 2016, Senate Majority Leader Mitch McConnell declared it was too close to the date of a presidential election to hold hearings on the confirmation of a successor.
When Justice Ruth Bader Ginsburg died in September 2020, McConnell clarified that the rule only applied to situations in which the Senate majority and the president are of opposite parties, and that naturally, a replacement for her should be confirmed as quickly as possible.
The hypocrisy is, of course, galling to liberals who are also frustrated by the prospect of defeat. But for all the talk of Merrick Garland’s “stolen” Supreme Court seat, McConnell wasn’t cheating. He was playing what Georgetown University Law Center professor Mark Tushnet calls constitutional hardball, “practices — legislative and executive initiatives — that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings.”
And while you may not like hardball, to an extent, that’s the point. This is a country with elections, and the idea is if politicians’ deployment of hardball tactics becomes unpopular, they’ll lose their elections and things will change.
McConnell’s actions were unpopular. Polls showed that voters believed the Senate should have held hearings on confirming Garland to the Court. And when the votes were counted in November, Hillary Clinton got more than Donald Trump and Democratic Senate candidates got more votes than Republican ones. But the GOP retained a Senate majority, Trump became president, and Neil Gorsuch sat on the Supreme Court.
The problems with the current American political situation only really come into view when you zoom out to the whole landscape. Every electoral system has its quirks, and elected officials are entitled to throw some elbows if they think it’s important. But McConnell’s hardball isn’t a fair game — his ideas don’t need to be popular to win, and his unfair advantage in one arena extends its power into other arenas.
The circle of entrenchment
Thurgood Marshall did not want a Republican to nominate his successor. But in 1988, George H.W. Bush won a historically unusual third GOP term, as Ronald Reagan’s successor. And Justice Marshall’s health gave out in October 1991, when he had to step down for medical reasons. This was not yet the era of constitutional hardball in the US Senate, so a Democratic-controlled body confirmed Clarence Thomas to succeed him. Thomas’s confirmation was nearly derailed by sexual harassment allegations, but even if the body had handled Anita Hill’s charges more responsibly and blocked Thomas, some other conservative would have gotten the job.
Nine years later, a 5-4 conservative Supreme Court majority that would not have existed had Marshall retained his health for one more year cut short the vote-counting in Florida and ensured that George W. Bush would become president. One of the five, Justice Sandra Day O’Connor, was heard to tell friends that fall that she preferred a Republican president because then she could retire with her succession in GOP hands. And retire she did in 2005, creating the vacancy now held by Justice Samuel Alito.
O’Connor’s fellow moderate conservative, Anthony Kennedy, also strategically retired in 2018 — choosing his timing not only so that a Republican could pick his replacement but so as to help GOP Senate candidates in a tough midterm fight.
Public perceptions of the Supreme Court are often dominated by abortion politics, where O’Connor and Kennedy often sided with the left. But the fact that both justices preferred GOP-selected replacements is a reminder that there are many other issues on the docket, and their own view is that on most matters, they leaned to the right.
That was true on the decisive Bush v. Gore litigation. It was also true of Kennedy’s siding with the right on voting rights, gerrymandering, and campaign finance issues.
Control of the courts allows Republicans to further tilt the electoral playing field. Waging judicial politics on a tilted playing field allows Republicans to control the courts.
Minority rule politics
In 2018, the Democrats won such a landslide in the popular vote that they were able to overcome the 3-4 percentage point skew of the House map. But the Senate map gives rural areas 2.5 times the voting power of big cities, meaning Democrats need to win Senate races by 6 to 7 points.
We ran the numbers, and the Senate is currently around *6 to 7 points* (!) more Republican than the country as a whole, based on the position of the median states relative to the national average. That means Dems need ~landslide margins to win the Senate. https://t.co/0OejJ56Lia— Nate Silver (@NateSilver538) September 20, 2020
This puts Democrats at a disadvantage. But the problem is actually more serious than that. The House gerrymanders, for example, while large are clearly not insurmountable.
But even when they are surmounted, what you get is a House where the pivotal members represent seats that Donald Trump won even while he lost the popular vote. This impacts not just electoral outcomes but actual governance. If a majority of the House represented anti-Trump districts, then the House would be politically empowered to act aggressively to check Trump’s abuses of power. But since the Democratic majority relies on Trump crossover voters, Democrats have hesitated to move aggressively with oversight or to use the power of the purse to back up the rule of law.
House Speaker Nancy Pelosi’s gamble, which is not too far-fetched, is that Trump is just too unpopular. By this thinking, if Democrats just put their heads down and talk about basic policy issues — health care, the pandemic, the minimum wage — they can hold their majority and Joe Biden can win the presidency.
But it’s a big gamble. Trump would almost certainly be reelected even if he loses the popular vote by a point or two, and could conceivably be reelected while losing by three. In the 2018 Senate races overall, Democrats won a large majority of the votes but lost seats. So on the one hand, there’s a risk Pelosi’s gambit fails, Trump retains power, and, having established all manner of abusive precedents, proceeds to consolidate it. But there’s also the risk that even if Pelosi’s bet pays off, Democrats will be unable to govern.
Constitutional hardball in defeat
In the 2018 midterms in Wisconsin, Democrats swept narrow victories in the statewide races and secured 53 percent of the votes cast in elections for the lower house of the state legislature. But because of gerrymandering, the GOP won more than 60 percent of the seats. And knowing they’d be insulated from public backlash, the legislature held a special lame-duck session during which they stripped power from the state executive branch and reassigned it to themselves. Something similar happened in Michigan that same year, and in North Carolina two years earlier.
This is another case where minority rule begets minority rule.
Once the minoritarian legislature becomes comfortable with its exercise of power, it starts gobbling up the other institutions not despite its lack of democratic legitimacy but because of it. Only because the US Senate is so egregiously malapportioned does it make sense for McConnell to trample so blatantly over public opinion and the president’s traditional prerogatives.
If Republicans retain a Senate majority despite a Biden win, which is a very plausible outcome, they may well do the same on the whole panoply of executive branch appointments. We’re accustomed to seeing the president as the main driver of his Cabinet, with the advise and consent function limited — even by an opposition Senate — to smoothing off only the roughest edges.
But it used to be the case that presidents could get Supreme Court appointments through an opposition-held Senate. Will there be a housing and urban development or health and human services secretary in 2021 if Republicans hold a Senate majority? Absent filibuster reform, will any legislation pass at all even if Republicans are consigned to the minority? Of course, even faced with gridlock, a president can wield executive authority. But will six conservative Supreme Court justices allow any of it?
Given the extent of the tilted maps — 2 to 3 points in the Electoral College, 4 in the House, 6 to 7 in the Senate — Republicans could probably hold majorities almost all the time if they wanted to. But they choose to play their hand more aggressively than that, moving forward boldly with unpopular policy initiatives and then obstructing during periodic defeats.
Someone should do something about it
Neither Joe Biden nor Senate Democrats seem inclined to pursue these measures yet, but if Democrats win a Senate majority this fall, there is a partial solution at hand:
- End the filibuster so a Senate majority can govern.
- Admit DC, Puerto Rico, and ideally the US Virgin Islands as US states.
- Adopt tough legislative curbs on partisan gerrymandering.
- Expand the lower courts, at a minimum, as a way of improving the operation of the federal judicial system and putting the Supreme Court on notice to behave itself.
In a pinch, you add seats to the Supreme Court itself. Either way, Democrats need to get out of the funk of thinking of these moves as outrageous norm violations. The actual issue is that the American democratic tradition carries within it two overarching norms that are contradictory. One is adherence to the Constitution and to the rule of law. The other is adherence to the concept of political equality — that all citizens are equal and ought to have their interests and views considered equally by the political system.
This latter idea is not part of the original constitutional order, but is implicit in the Declaration of Independence, in the 14th Amendment, in the landmark Baker v. Carr case requiring “one person, one vote” in state legislative districts, and in much of our political culture. McConnell’s own statement on Ginsburg’s passing invokes the concept of popular sovereignty, arguing that “Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary.”
But of course Americans did no such thing. Most voters preferred the opposite outcome. What gives McConnell his power is not the will of the people but the lines on a map. If Democrats win, they would have not only the power that McConnell currently wields but also the genuine popular mandate he pretends to have — and they should use it.
The harder question is what to do if, this November, most people vote against Trump and against McConnell and they win anyway. Twenty years ago, before I was a journalist, I thought the answer was to take to the streets — an idea that at the time found little support among elite political actors.
In the desperate year of 2017, Democrats did turn to mass resistance outside the electoral system as a political tool, but after the midterms, they dropped it, to their detriment. It was protests that toppled Mariano Rajoy’s corrupt right-wing government in Spain in 2018, Park Geun-hye’s corrupt right-wing government in South Korea in 2017, and Sigmundur Davíð Gunnlaugsson’s corrupt right-wing government in Iceland in 2016. And it is mass protests in Belarus that may topple a corrupt and authoritarian government there.
So far, few in charge of anything in America seem to be thinking along these lines. But after a summer of uprisings and sporadic rioting, it’s worth remembering that while patience is a virtue in politics, charging ahead with unworkable ideas is not.
People are upset about the direction of the country, and rightly so. If institutions block change through electoral means, then anger will unleash itself in other forms. It would be much better for the country for that to be smart, well-designed acts of civil disobedience led by responsible and strategically minded people. But if responsible leaders won’t lead, then irresponsible ones will.