On equality, the courts and democratic — with a small “d” — reform
As I write this, the U.S. Senate is debating the confirmation of Amy Coney Barrett, an outcome that is seemingly predetermined. Republicans are brazenly violating their “not in an election year” new rule, which they so enthusiastically insisted would be the new precedent. Progressives are obviously upset over what will certainly be a radical shift of the U.S. Supreme Court in the wrong direction. It’s particularly upsetting for admirers of Ruth Bader Ginsburg, such as myself, to watch her be replaced by someone who benefited from the late Justice’s efforts, and now only seeks to undermine the progress Ginsburg helped to achieve.
As progressives, we’ve come to view the judiciary as the meaningful venue for policy change, especially change to advance the rights of marginalized communities. We grew up in the wake of the Warren Court, which ushered in major advancements in equality and individual freedoms. Chief Justice Earl Warren’s ruling in Brown v. Board of Education (1954) did what Congress and state legislatures around the country failed to do during post-Civil War reconstruction, by ending de jure racial segregation in public institutions.
During its nearly 16 years, the Warren Court issued a seemingly countless number of rulings that advanced civil liberties and protected the rights of a comparatively powerless minority. Legalizing inter-racial marriages; expanding the rights of individuals accused of crimes; advancing free speech rights for civil rights activists; and laying the first brick in the legal precedent of the separation of church and state.
If ever there was a Supreme Court that was perceived of protecting rights of the minority, it was the Warren Court. Legal scholars noted it was “[a]ccused of protecting blacks, communists, criminals, atheists, pornographers, and other perceived threats to white, middleclass America” making it “… quite possibly the most vilified Supreme Court in United States history.” For generations of progressives who came of age post 1960s, myself included, the die had been cast: True advances in equality are best achieved through judicial action.
The reasoning made intuitive sense. The elected branches, by nature of being elected by the masses, will only advance majoritarian policies. The courts, we presumed, were there to protect the rights of the minority and powerless from the tyranny of the majority.
However, with Ginsburg’s death and an impending 6–3 conservative majority on the Supreme Court, the time has come for progressives to fundamentally alter our views on judicial advocacy. In the process, it would also be useful for us to surrender some of our long-held notions about the judiciary, and the Supreme Court in particular. While the brilliant legal minds of individuals such as Thurgood Marshall, Ginsburg, and Warren deserve all the praise heaped upon them for their efforts to advance liberty and equality for all, the long-established truth among judicial politics scholars is that the courts have never been quite the counter-majoritarian weight liberals came to believe. Indeed, even the Warren Court broadly followed the contours of public opinion and was reluctant to overrule Congress or the states, even when dealing with the rights of minorities. For every Brown, there are roughly a dozen Plessy v. Ferguson’s (1896).
In his often-cited Federalist #78, Alexander Hamilton noted the judiciary lacks both the “sword or the purse” to enforce its decisions. As such, the judiciary’s one and only mechanism of enforcing its decisions is the institutional norm of deference to judicial opinion, particularly that of the Supreme Court. Even under ideal circumstances, such a weak mechanism of enforcement hinders the Court’s ability to robustly push back against the elected branches or public opinion, even when justices desire to do so. Notably, with Brown, the magnum opus of civil rights rulings, the Court struggled to enforce its desegregation judgement, forcing the justices to issue their “with all deliberate speed” ruling one year later in Brown v. Board of Education II (1955), a decision that opened the way for local governments to resist integration orders for decades.
Now, in an era with a Republican Party that violates institutional norms at a record pace, we can no longer rely on norms such as institutional prestige to protect our rights. And, of course, President Trump, himself, has shown utter disregard for the rule of law and the judiciary as an institution. In his first term, he walked up to the brink of openly violating the Supreme Court’s ruling in the Census citizenship question case last year. Does anyone really believe that a second-term Trump, or even a future Republican President, is not willing to take that one last step of open defiance?
Further, Republicans have made it clear they intent to prevent future Democratic Presidents from filling virtually any federal judgeship — and not just Supreme Court positions. The post-2014 McConnell Senate refused confirmation for 105 federal judgeships during Obama’s last two years in office, which does not include the deceased Antonin Scalia’s open Supreme Court seat. Even if Trump lost in 2016, Senate Republicans repeatedly said they would refuse to consider any Democratic nominee.
This problem is exacerbated by the un-democratic (small “d”) nature of the elected branches. Given the rise of ideological tribalism, where there is less split-ticket voting and citizens have largely sorted themselves into progressive and conservative communities, Congress and the presidency are decreasingly likely to be representative of the public as a whole. On this front, political scientists, notably Norm Ornstein, have been sounding the alarm for more than a decade.
Take, for example, the presidency — the only office that purportedly is intended to represent all citizens. Due to the rural, small state slant of the Electoral College, only one Republican has won the popular vote in the last seven presidential elections, and that was an incumbent self-describe “war-time” president in 2004. In two of the last five elections, the popular vote winner has lost the Electoral College vote.
This type of outcome will not only become more common, but the gap between the popular vote and electoral tally will also become more extreme. In 2000, George W. Bush barely won the electoral vote over Al Gore, 271 to 266, respectively, with one faithless Gore elector casting a “no vote.” While Gore won the popular vote, the difference was comparably small: 48.4% to 47.9%, only 543,895 votes nationally. In 2016, however, the electoral and popular vote gap grew substantially, with a 77 electoral vote difference in Trump’s favor (before faithless electors) and Clinton winning the popular vote by 2.1%, or more than 2.8 million votes.
The situation is even more dire in the Senate. In the last 10 election cycles Republicans have only managed to crack 50% of the Senate generic ballot vote once, receiving 51.7% of Senate votes nationwide in 2014. That year, they managed to pick up 9 seats. In 2018, by comparison, Democratic candidates received 58.4% of Senate votes nationwide, in what was universally considered a wave election — which resulted in a net loss of 2 Senate seats for Democrats. If demographic shifts continue in their current trajectory, we are conceivably facing a real prospect of a U.S. Senate where only 30% of voters from more rural white states are selecting 70% of U.S. Senators.
If the situation seems grim, that’s because it is. But it is not beyond hope. Due to Trump’s corruption and complete incompetence, Democrats face the real prospect of united government — controlling both houses of Congress and the presidency — next year. With the judiciary overwhelmingly stacked against progressive values, Democrats have no choice but to take measures that make the elected branches more representative. And here’s the good news: Most of these steps are all relatively easy.
Some of these are steps you may have heard about, such as statehood for Washington, DC and Puerto Rico, which will add 4 new members of the U.S. Senate and allow citizens of Puerto Rico to vote in presidential elections. At the state level, Democrats should move to adopt the National Popular Vote Interstate Compact, an agreement among states that would make the electoral college irrelevant by awarding the necessary 270 electoral votes to whomever wins the popular vote. Already 15 states, plus DC, have ratified the compact, which totals 196 electoral votes, more than halfway to the 270 needed.
Republican critics will howl that such steps are “partisan” power grabs; however, such criticism will ring hollow coming from a party that has behaved with such brazen self-serving partisanship during the last several years. Regardless, whether such moves are good for Democrats is moot. The message for Democrats and progressives to emphasize is that such steps are good for democracy.
Afterall, granting congressional voting representation for DC, a community with a plurality black population, sends a meaningful statement that black lives do matter. It is simply undemocratic that the President can falsely claim that the deaths of nearly 3,000 Americans during Hurricane Maria did not happen, and yet citizens on the island cannot vote on whether he is reelected. And it is fair to neither liberal New York or conservative Kentucky that there has not been one single general election presidential campaign event held in either state over the last three election cycles.
One last step entails progressives adjusting their philosophy regarding policy advocacy, specifically for matters of equality. With the judiciary seemingly in conservative Republican control for generations, progressives should consider pursuing issues of equality in the traditional legislative sphere, the way they approach regulation and bread and butter issues like health care. It is true that Democrats could add more seats to the Supreme Court and lower courts — a move which I support. However, the ability of progressives to effect meaningful change through judicial advocacy will never again be what it was.
Besides, measures like the Popular Vote Interstate Compact and statehood for DC and Puerto Rico are much more difficult to retaliate against. Once enough states adopt the compact to equal 270, there is nothing Republican-dominated states can do to respond. And unless there is some majority white U.S. territory being hidden from the public, Republicans would have to resort to highly unlikely measures, like splitting Alabama into the neighboring states of Alabama and Auburn, to add new states.
Progressive defenders of judicial advocacy will note that there have been rulings to advance equality, even in the post-Warren era. The Republican-dominated John Roberts Court, for example, has issued a number of landmark rulings on LGBTQ rights, including striking down the Defense of Marriage Act; legalizing same-sex marriage; and, just earlier this year, protecting LGBTQ individuals from employment discrimination. All wonderful decisions, which I wholeheartedly support. However, it is imperative to note these decisions were quite popular with the public. The American public overwhelmingly supported same-sex marriage and employment protections for LGBTQ workers by the time of these rulings.
In truth, modern conservatives on the Court have actually saved Republicans from electoral consequences on equality issues that ultimately became popular do to changing demographics. By the time of the Court’s same-sex marriage rulings, even staunch conservatives were reluctant to take positions on same-sex marriage, deflecting to claim it was a “states issue.”
In recent decades, Republicans have more successfully utilized the courts to advance their own policies that lack democratic popularity. The same Court that protected LGBTQ-individuals from employment discrimination also struck down a major part of the Consumer Finance Protection Board — a ruling that will have far reaching implications for consumers and the ability of all government agencies to operate independent of political influence. It is no coincidence that after seven years of railing against the Affordable Care Act and voting to repeal it more than 50 times when Obama was president, Republicans failed to repeal the law when they had united government during Trump’s first two years in office. And now, of course, they seek to do so in an even more friendly Supreme Court, lacking a Ginsburg vote.
It is fundamentally unconscionable that due to “historical accident and racism,” white people enjoy representatively more voting power in the U.S. Senate and the presidency than non-whites. In the near future, marginalized communities, e.g., individuals of color and LGBTQ, will be further underrepresented. Reform is necessary. If we are going to reform the undemocratic biases in our elected branches, however, we must consider a future where issues of equality, such as reproductive rights and discrimination, are also decided in the democratically elected branches. And progress achieved through those means cannot be so easily undermined.
