Assuming that the White House errs on the side of sanity, Democrats may be unable to prevent President Trump’s Supreme Court pick from being confirmed. But if they play their cards right, they may be able to highlight the single most important issue now confronting American democracy: increasingly unrepresentative minority rule.
On issue after issue, majority views are stifled. Regarding the Supreme Court, Republicans have become precisely what they have long pretended to abhor: a party relying upon unelected, “elitist” judges to win political disputes in the courts that they can’t win at the ballot box.
As New York magazine’s Jonathan Chait trenchantly points out, Democrats have received more votes than Republican nominees in six out of the last seven presidential elections — starting with Bill Clinton in 1992. Yet four of the eight Supreme Court justices whose judicial activism has dominated American politics since Bush v. Gore — the nakedly partisan decision handing the presidency to George W. Bush, Lion of Baghdad — have been appointed by Republicans.
The results have been damaging to our democracy, none more than the 2010 Citizens United decision, in which the Supremes essentially ruled that corporate money is speech, rendering virtually all campaign finance laws toothless on First Amendment grounds. This has corrupted our politics almost beyond measure. In his dissent to the 5-4 decision, Justice John Paul Stevens wrote that the ruling "threatens to undermine the integrity of elected institutions across the Nation …. [a] democracy cannot function effectively when its constituent members believe laws are being bought and sold.”
Who could now believe anything else?
Then there’s D.C. v. Heller, the 2008 decision invalidating gun control laws based upon an absolutist reading of the Second Amendment at odds with the plain text, which includes the phrase “well-regulated.” Over 200 years, such an interpretation never occurred to anybody until Justice Antonin Scalia dreamed it up. In view of the subsequent carnage, even Scalia had second thoughts, telling a Colorado audience after a grisly mass murder committed by a mental patient wielding an AR-15 that the right to keep and bear arms was not absolute.
The brilliant jurist gave as an example of a weapon that might be forbidden — I am not making this up — a hand-held rocket launcher capable of bringing down an airplane. A real card, Justice Scalia.
Although the great majority of gun owners (myself included) would favor laws taking military weapons out of civilian hands and imposing strict background checks, a Republican Party completely in thrall to the National Rifle Association — whose money, even Russian money, is speech after all — resists sensible legislation. In consequence, mass shooting incidents have become an increasingly common feature of American life, rendering the sane majority helpless and fatalistic — a bad state of mind in a democratic republic.
Should a Republican Senate jam through yet another cookie-cutter Federalist Society ideologue before November’s congressional elections, Jeffrey Toobin predicts some rulings we can expect.
The Supreme Court, he writes, “will overrule Roe v. Wade, allowing states to ban abortions and to criminally prosecute any physicians and nurses who perform them. It will allow shopkeepers, restaurateurs and hotel owners to refuse service to gay customers on religious grounds. It will guarantee that fewer African-American and Latino students attend elite universities. It will approve laws designed to hinder voting rights. … It will invoke the Second Amendment to prohibit states from engaging in gun control, including the regulation of machine guns and bump stocks.”
None of these outcomes is favored by the majority of American voters. Not even close in most cases. Take Roe v. Wade, for example. Polls show that two-thirds of voters nationwide favor keeping government out of people’s bedrooms and doctor’s offices. The conservative in me, for example, sees it as a straight-up Fourth Amendment privacy issue.
Regardless of your own or your church’s view that abortion is a terrible sin, how does government even know when a woman becomes pregnant? It’s simply nobody’s business. Nothing could be more private or personal. Where does anybody, much less government, get off making so intimate a decision for anybody else? It’s not a matter of being pro-abortion, but pro-liberty.So are we headed for a country in which citizens in New York, California and other highly-populated places have dramatically different personal freedoms from those in what Mencken called the “cow states?” Could be.
Indeed much of the nation’s political paralysis derives from the outsized power the Constitution gives about 30 thinly-populated states in the U.S. Senate and the Electoral College. As things stand, the average citizen of Wyoming has approximately 70 times more power than a Californian.
Exacerbated by an authoritarian president and enshrined in a Supreme Court dominated by partisan ideologues, this undemocratic division of power is tearing at the nation’s foundations.
Senate Democrats can make a great show of resisting a Trump nominee, but the only long-term solution lies in voters’ hands.