Change No One Would Have Believed

Audacious hopes recede in the rear view mirror

As we await the inauguration, take yourself back to January 20th, 2009. Remember your sense of hope and optimism? It was palpable. Now, imagine you are visited by a time traveler from 2025. He tells you, “Change is coming, all right!” And then he tells you what that change looked like:

• Billionaires swamped elections with unlimited spending, and corporations, which could not spend on elections before, had spent more in each of the toss-up House and Senate elections than the candidates in those elections;

• The Voting Rights Act was all but repealed, and politicians were drawing their own districts with almost no constraints;

• Women lost the constitutional right to an abortion;

• Anti-corruption laws were gutted while the rights of white-collar criminals were expanded; and

• New laws were enacted making it almost impossible for consumers and workers to bring corporations to court or to file class actions.

He continues, “All of that was accomplished without a single vote in Congress or an executive order by a president being issued.”

As you are reeling, our time traveling friend continues. “The president about to be sworn in had, only four years earlier, incited an insurrection to overturn an election he lost.” You stutter, “What happened? Was there a military coup? Didn’t anyone try to do anything to stop this? Surely, this insurrectionist president must have faced consequences. After all, in America, no one is above the law.”

The time traveler grins. “Funny thing about that. Some things didn’t change. Biden will be there at the 2025 inauguration, too – this time as president, there to peacefully transfer power back to that insurrectionist former president. To the guy who still hadn't acknowledged his defeat four years earlier and who plans to immediately pardon his accomplices. Only in the last minute of the last hour of his fifty year career did it dawn on Biden to warn Americans of an ‘oligarchy taking shape’ as if it had only just become perceptible, and he had done nothing to staunch it in his four years in office.”

“Which aptly brings us to another figure who was on the podium then and will be again – John Roberts, who administered the oath of office to Obama and will again to Trump. It’s apt because without the actions of his Supreme Court majority, none of what I just told you about from the last 16 years would have been possible. And that majority would not have been possible without a revanchist coalition spending billions of dollars to circumvent American democracy in order to force through its unpopular agenda.”

And you may ask yourself: "Well, how did I get here?"

The New Deal and the civil rights revolution in the 1960s were anathema to plutocratic business interests and the Religious Right. Therefore, these interests joined forces in a campaign to repeal and replace the 20th century. They understood that they couldn’t do so through anything resembling a democratic process – so the obvious solution was to circumvent that process by packing the federal judiciary with fellow campaigners.

Plutocrats like the Kochs spent billions of dollars on the Federalist Society project, including an ecosystem of law schools, journals, and more, to create a whole generation of lawyers who were prepared to be mission-aligned lawfare warriors.

The Plutocratic Doom Loop

To call the Roberts Court “conservative” misunderstands the crisis we face. Since the Civil War, we saw a fairly predictable ebb (under Republicans) and flow (under Democrats) in the federal commitment to advancing greater freedom and equality and to constraining corporate threats to consumers, working people, and the environment. But with decisions like Citizens United, Shelby, Rucho, Brnovich, and Fischer, which together created a sea change in how our leaders are elected and funded, Roberts’s agenda-driven majority turned that ebb and flow into a doom loop for American democracy.

Decision after decision shifted more and more electoral power to the Roberts Court’s pluto-theocratic sponsors – who in turn used that power to take greater control of Red state governments and purge Republican congressional caucuses of RINOs – which in turn was used to place more and more Federalist Society true believers on the Federal bench, and eventually the Supreme Court.

The Roberts Court Is No Court at All

Too often, even those who disagree with most or all of the Roberts Court’s decisions naively place it in a tradition of other Courts, especially the Warren Court, which also overturned major precedents that often generated substantial public backlash. Those institutionalists generally insist that we are all better off defending the institution because we don’t know when we’ll need it.

But the Roberts Court is categorically different from earlier courts and their landmark decisions:

• The Roberts Court is a purposeful project to do by judicial fiat what could never be done by any other available democratic process;

• The plutocrats behind the Federalist Society spent billions to pack the Court with justices who would selectively take up “cases” designed to make pro-plutocrat rulings like Citizens United and Loper Bright. By contrast, the NAACP did not spend billions of dollars to pack the Court with pro-civil rights justices who decided Brown v. Board, nor did indigent prisoners spend billions of dollars to pack the Court with pro-defendant justices who decided Gideon, nor did feminists spend billions of dollars to pack the Court with justices favorable to abortion rights who decided Roe v. Wade.

• Unlike the Courts before it, the revanchist coalition behind the Roberts Court captured the Senate as well, necessary to (1) eschew bipartisanship in ramming through unpopular nominees (more below); (2) defy norms by denying Obama his nominee before ramming through Trump’s; and (3) reliably filibuster every attempt by Congress to respond to the Court’s rulings, removing an important check that was frequently used throughout American history.¹)

• A single interest group, the Federalist Society, has had veto power over every Republican president’s Supreme Court nominees since George W. Bush’s failed nomination of Harriet Miers.

• Unlike previous courts that sought consensus and made concessions to present a united front for significant or controversial rulings to maximize public credibility, the Roberts Court pursued maximalist outcomes with no concessions along partisan lines. (More below.)

• The Roberts Court is the only Court in American history consisting of justices confirmed by Senators representing less than half of the United States population or a majority of justices appointed by presidents who lost the popular vote. (More below.)

From Consensus to Lawfare: Politicians in Robes

There are many ways to concretely visualize the dramatic contrast between the Roberts Court and its predecessors. From 1930 on, the average percentage of senators voting to confirm the justices on the Supreme Court was over 90%. Then came the Federalist Society nominations.

It’s much worse than that, though. As the next chart shows, Senate support for the Republican Justices was remarkably bipartisan … until only recently, when Republican senators made up 90 percent of the votes for the Republican justices. It’s a team effort now, requiring not just a presidential appointment but the very active efforts of the Republican Senate caucus – including withholding the Garland nomination and ramming through the Coney Barrett nomination.

Especially since 2008, we’ve seen the parties realign along regional lines. The next graph compares the Red state dominance of Trump’s Electoral College coalition, as well as Red state dominance of the House and Senate Republican Caucuses, with the geographical sources of support for the Roberts Court’s justices, to show how indistinguishable it all is now.

The predictable result of this process has been a return to the near-elimination of two-party competition in the South, which further perpetuates the toxic cycle. The gray squares represent one-party control of either the state legislature (bottom half) or the state legislature plus the governor’s seat (top half).

And thanks to Citizens United, the ultra-wealthy have an unprecedented amount of influence over this process. Outside spending went from nonexistent in 2008 to nearly $4.5 billion this year.

Outside groups spent more in every one of the toss-up House and Senate races than the candidates in those races did themselves.

The Minority Rule Court

Until Clarence Thomas, every Supreme Court Justice had been confirmed by senators who represented a majority of the US population, at least since the Civil War.² Today, five of the six Roberts majority justices were confirmed by senators representing less than half of the population. Moreover, of the six, five were nominated by presidents who lost the popular vote.

The Rule of Ipse Dixit

Defenders of the Roberts Court’s legitimacy argue that every Supreme Court has made unpopular rulings or overturned precedent, both of which describe the Dobbs ruling. But Roberts’ approach to overturning precedent is different. Previous justices, understanding the gravity of overturning precedent, worked to build consensus with their colleagues to bolster the ruling’s legitimacy. The Roberts Court rules by ipse dixit – the law is what we say it is, and if you don’t like it, too bad.

Compare the careful consensus-building of earlier courts to the ipse dixit impunity of the Roberts Court, on major election voting rights cases and on overturning major civil rights precedents.

In the next chart, compare the leftmost and rightmost bars – the leftmost being the Warren Court, the one that is usually offered as a “both sides” rebuttal. All of the Warren Court’s major election related decisions had at least six bipartisan votes, and nearly all had at least seven (blue). On the other hand, nearly all of the Roberts Court’s major election related decisions were by 5-4 along partisan lines (red). And there were nearly twice as many of them.

It’s the same story with respect to civil rights precedents overturned. Again, more than half of the Warren Court’s were decided with at least seven votes, while nearly all of the Roberts Court’s had the bare minimum, five votes, without bipartisan support (and most of the 6-3 rulings were on party lines after Coney-Barrett joined).

In his confirmation hearings in 2005, Sam Alito said “Stare Decisis is an important limitation on what the Supreme Court does.” But he offered a more telling definition to a Federalist Society dinner: “It means to leave things alone when it suits our purposes…It is not difficult for a judge to make the Stare Decisis inquiry come out however the judge wants it to come out.”

Again, “conservative” doesn’t cover it, nor does “originalist.” The Roberts Court rules however it “suits [their] purposes,” as Alito would put it – or more precisely, suits the purposes of their movement. Anyone who accuses the Roberts Court of a “judicial power grab” (a common critique of Loper Bright) fails to understand that the justices aren't trying to grab power for themselves, but for the oligarchs and theocrats who have their loyalty.

Honoring Martin Luther King

By coincidence, Martin Luther King Jr. Day falls on Inauguration Day this year. With respect to civil rights, we can perhaps most clearly see how the Roberts Court has become the last line of defense against democracy. We now see the non-violent, democratic movements that led to the Civil Rights Act and to the Voting Rights Act as American democracy’s finest moment. The gallery on the right, beginning with King himself, shows just a few of those who were murdered in the struggle for voting rights.

Murdered civil rights leaders, starting top left: Martin Luther King, Jr., Medgar Evers, Cpl. Roman Ducksworth Jr., Dr. Thomas Hency Brewer, Henry Hezekiah Dee, Charles Moore, Herbert Lee, James Chaney, Andrew Goodman, Michael Schwerner, Jimmie Lee Jackson, Johnnie Mae Chappell, Jonathan Daniels, Lamar Smith, Louis Allen, Lt. Col. Lemuel Penn, Rev. Bruce Klunder, Sammy Younge Jr., Vernon Dahmer, Rev. George Lee, Viola Gregg Liuzzo, Rev. James Reed, William Lewis Moore, and Willie Brewster.

And yet Antonin Scalia dismissed the Voting Rights Act as a “racial entitlement” that was too difficult to get out of “through the normal political processes.” The Roberts Court was more than happy to heroically intervene to bypass those processes. There may be no better way to respect King’s and the others’ sacrifice than to read every name and look at every picture above, then listen to Scalia. Imagine the lives, friends, and families of those who were murdered to win that “racial entitlement.”

In Any Other Country

In any other country, if an insurrectionist president was elected again thanks to the intercession of justices he appointed, we would see it for the constitutional coup that it is.

The Federalist Society backers’ interests have often, but not always, aligned with those of the Republican Party or Donald Trump. In the last two years, however, the members of the Roberts Court majority (and other Federalist Society judges like Aileen Cannon) have thrown themselves fully behind Trump. If not for their interference and obstruction of justice, Trump’s candidacy would not have been viable.

Remember, in the last two years:

• Every time he has faced a grand jury, Trump has been indicted;

• Every time he has faced a trial jury, Trump has been found guilty;

• Every time his cases have come before judges he didn’t appoint, including those appointed by previous Republican presidents, Trump has lost;

• Whenever surveys have asked, a majority of Americans say Trump has committed crimes;

• But every time he has come before the justices and judges he appointed, Trump has had his way.

Eight Score and Four Years Ago

In his first inaugural address, Abraham Lincoln said:

In an almost direct challenge to those who saw the election of the first African American president proof of the existence of our “better angels,” John Roberts said this 10 months later (and it’s worth listening to him say it – audio here):

If it’s not too soon for some of you, oligarchy didn’t fall out of a coconut tree; it has always been in the American political DNA. For several decades in the middle of the 20th Century, sustained popular movements succeeded in erecting guardrails against plutocracy – strong unions, high tax rates, antitrust enforcement, the breakup of Southern authoritarian enclaves, and so on. Those shackled oligarchic and theocratic forces knew they could never convince a majority of Americans to unchain them, so they spent billions to pick the lock.

And if we don't like it? Too bad.

Weekend Reading is edited by Emily Crockett, with research assistance by Andrea Evans and Thomas Mande.

1. Richard Hasen - Scholarship highlight: End of the Supreme Court-Congress dialogue?

2. Before that the data were ambiguous.