Is This What Democracy Looks Like?

If we don't like it, it's "just too bad." -John Roberts

Where to begin? So much to say. 

On Wednesday morning, the banner headlines trumpeted Donald Trump’s “decisive win,” heralding a great “rightward shift.” Nearly every story about the election since then has fallen into line with an explanation of what happened as a remarkable personal triumph for Trump and an ideological triumph for MAGA, as the Republicans emerge as the party of the multiracial working class. Gone were those dark headlines about fascism coming to America. 

I must acknowledge that my expectations for the popular vote were absolutely wrong, as was my skepticism that we were in for as large a swing from 2020 as happened – likely about 7 points.¹ However, it is also the case that with about 95 percent of the votes counted, the broader dynamics of how elections work in the MAGA era, which I’ve been explaining for years, once again proved true. The outcome was due much more to the anti-MAGA majority staying home than either to conversions of 2020 voters, or to substantially more people deciding to embrace Trumpism. As I warned repeatedly, the most alarming thing leading up to Election Day was how little alarm there was coming from the most important civil society voices about what a second Trump administration would do.

Without that alarm, the disaffected Americans who came out in 2020 to defeat Trump simply did not do so again in 2024. Harris lost much less ground where turnout went down the least. Or, as the Wall Street Journal astutely documented, “Collapse in Democratic Turnout Fueled Trump’s Victory.²” If the exit polls are roughly accurate, about 19 million people who had voted for Biden in 2020 just stayed home.³ And, again, if the exits are roughly accurate, nearly all of those who stayed home had said they were voting against Trump when they cast ballots in 2020.⁴ (More to come later this week when all the votes are counted.)⁵ 

I’ll be writing a lot more in the coming weeks, so today, I want to just offer some bigger-picture observations about key themes that are missing from this week’s takes about this election. But first, I want to pose what I think should be the defining question for those who sought to defeat Trump as they react to the outcome.⁶

In his first inaugural address, Abraham Lincoln said: 

“The candid citizen must confess that if the policy of the Government upon the vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court . . . the people will have ceased to be their own rulers.”

In October 2009, John Roberts said this on C-SPAN (and it’s worth listening to him say it – audio here):

“The most important thing for the public to understand is that we’re not a political branch of government. They do not elect us. If they do not like what we are doing, it’s more or less just too bad.”

As you read this rest of this post, and as you consume the breathless media about what this all means, keep focused on whether you are on Team Abe or Team Roberts – whether we should focus on the fact that we have “ceased to be [our] own rulers,” or whether “it’s just too bad” and we should instead look for savvy things to say about what the Democrats did wrong.

Completing the Constitutional Coup

The real headline of this election isn’t about Trump’s victory. It’s about how the Federalist Society coalition of plutocrats and theocrats has all but completed its mission to repeal and replace the 20th Century by judicial fiat. 

While Trump was almost certainly not the first choice of the FedSoc coalition, his election, along with the incoming Republican Senate, means that Trump will be able to allow Thomas and Alito to strategically retire and install a 6-3 or 7-2 FedSoc majority for decades. And with the opportunity to place 200-plus more judges to the federal bench, we can expect nearly half of the federal judiciary to have been appointed by Trump by the end of his term. (Think Matthew Kacsmaryk and Aileen Cannon.) 

Trump is frequently compared to the other strongmen coming to power around the world. While Trump is certainly in that mold, it is dangerous to imagine that what’s happening in this country is the same. Instead of thinking of Trump as the animating “strongman” who warrants our exclusive concern, we need to realize that it is the fiscal sponsors of the Federalist Society project and the Republican Party who are the most dangerous threats. Consider this recent description of the autocratic playbook: 

What we have seen in the 21st century are leaders in movements that come to power through democratic elections and then, once in power, like Trojan horses, dismantle democratic systems from within so that they are able to entrench their powers and eliminate the possibility of being removed through the democratic process.

Now, if you think of Trump as the “leader” in that sentence, then the danger seems to be in the future – in which case the question is, “Can we hold him back?” But if, instead, we think of the billionaires and theocrats behind the capture of the courts and the Republican Party, then we have to recognize that they actually “came to power” about 19 years ago “through democratic elections,” and that “once in power, like Trojan horses, dismantle[d] democratic systems from within so that they [were] able to entrench their powers and eliminate the possibility of being removed through the democratic process.”  The Roberts Court has been a dictator from day one.

In Tipping the Scales: The MAGA Justices Have Already Interfered with the 2024 Elections, I went through the cases in which the billionaire-sponsored justices “dismantled democratic systems from within.”

As I wrote before the election in “The John Roberts Election,” the 2024 election would be unrecognizable to a visitor from 2008. Before the FedSoc capture of the Supreme Court and Citizens United, the billionaires were constrained by contribution limits. And while there was already “dark money” and some outside spending, it was nothing like what we saw in 2024, when: 

• Outside spenders, like Elon Musk, spent more to elect Trump than Trump could raise for his own campaign.

• In every toss-up Senate race, and in nearly every toss-up House race, outside groups, funded almost entirely by the wealthy, spent more than the candidates themselves.

Legal but Not Legitimate

To be very clear, I am not arguing that we should deny the results of the elections, or show up on January 6th, 2025 to disrupt the counting of the electoral votes, or some such thing. I am arguing for us to understand that this election was legal, but not democratically legitimate – in just the same way that for nearly a century, elections in the South were “legal” under Jim Crow constitutions, but did not legitimately represent the consent of the governed. 

From talking to many, many of you over the last week, I understand how difficult this point is to accept. Donald Trump received more votes than Kamala Harris did, and isn’t that the definition of a democratic result? There was no after-the-voting Supreme Court steal a la Bush v. Gore. Trump received more votes under the rules on Election Day; end of story. 

It’s not so simple. 

If what just happened here had happened in say, Hungary, we wouldn’t be poring over the exit polls in Budapest; we would easily recognize that the result was legal but not legitimate. (The real meaning of American exceptionalism is our exceptional ability not to see in ourselves what we easily see in others.) 

While Trump “won” playing by the rules as they were on Election Day, those weren’t what everyone thought the rules were when he announced his candidacy. Remember that in the last two years: 

• Every time Trump’s actions have come before a grand jury, he has been indicted; 

• Every time he has faced a trial jury, he has been convicted; 

• Every time he has had an important case heard by judges he did not appoint, including those appointed by other Republican presidents, he has lost; 

• Each time surveys have asked whether he had committed crimes, a majority say he has; 

BUT: 

• Every time he has come before the Supreme Court justices or federal judges he appointed, he has had his way.⁷

Every obstacle to Donald Trump’s candidacy was removed by a Supreme Court majority consisting of three justices he appointed and two who, under applicable federal law, were required to recuse themselves but did not. Those actions even drew a remarkable rebuke in Justices Sotomayor, Kagan and Jackson’s concurring opinion in Trump v. Anderson, saying that the Court was settling "novel constitutional questions to insulate this court and petitioner [Trump] from future controversy."

Groundhog Day Pundits

Many are quick to say that Tuesday represents something historic and possibly – likely? – enduring. For example, Doug Sosnik, who should know way better, called this the “the biggest shift to the right in our country since Ronald Reagan’s victory in 1980.”

But let’s look at changes in presidential parties going back to 1912 (Woodrow Wilson). Before 2016, the swings associated with changes in parties were much larger, and this is the only time in this century-plus time period in which the party in the White House switched three times in a row. Indeed, Carter’s Watergate fluke victory is the only time that control flipped in two consecutive elections.⁸  

As you can see from the graph above, in terms of vote share from Democrat to Republican, it wasn’t the biggest shift to the right since Reagan; it was only the biggest since the shift from George W Bush. And unlike 1980, when Reagan brought with him 34 new representatives and 12 new senators(!), Trump is bringing with him likely no change in the House of Representatives, and 4 or 5 new senators. 

Moving past the notion of “swing” to the actual size of the majorities (which, after all, is the only measure by which a victory could be called decisive), Trump will likely win the popular vote by 2 points or so. That’s the narrowest popular victory margin since 1968, and among the lowest of the last century.⁹ This being the case, we have to ask, why are Democratic consultants and liberal commentators competing with each other to find the most grandiose (and unsubstantiated) claims for the greatness of this historically slim victory?

In fact, this is the second time that Donald Trump came close to losing an election that any other credible Republican candidate would have won by a much larger margin. 

Another look at historical trends shows that for the last two decades, all but one election has been a “change election,” because Americans are simply fed up with the system not working for them.¹⁰ In nine of the last ten elections, voters have fired the occupant of the White House or the party controlling at least one congressional chamber. Polling has shown over this period, especially since the 2008 crash: 

• Confidence in every institution has plummeted to the point they are all underwater; 

• By 2:1 and 3:1 margins Americans think the country is going in the wrong direction;

• Even as voting has become more ossified, fewer and fewer identify themselves as Democrats or Republicans.

How many of you have Ruy Teixiera and John Judis’s Emerging Democratic Majority, Tom Hamburger and Peter Wallsten’s One Party Country: The Republican Plan for Dominance in the 21st Century, or Stan Greenberg’s GOP RIP: How the New America is Dooming the Republican on your bookshelves? All of these are majestic takes from the last two decades on how American politics has transformed in a permanent or enduring way. But, as the chart above clearly shows, in 21st century America, the best strategy for winning the next election is losing the last one.

Moreover, you might have seen this Financial Times chart, showing the fact that “different politicians, different parties, different policies and different rhetoric deployed in different countries have all met similar fortunes suggests that a large part of Tuesday’s American result was locked in regardless of the messenger or the message. The wide variety of places and people who swung towards Trump also suggests an outcome that was more inevitable than contingent.”

This Bloomberg chart breaks it down by country for the last two years (which is why you see some not losing vote share)¹¹:

Note that most of the parties losing the most ground were right or center-right.

Yet, after this election, as after pretty much every election, we ignore all of that to proclaim the not-loser as heralding some great realignment in American politics with profound but never specified implications, and to declare the not-loser as possessing some profound connection with the American people and some special sauce for campaigning in the new age. 

Thus, we have two stories about “what happened.” In one, there is a worldwide swing against incumbents. In the other, a set of demographic groups swing towards Trump. The first is a worldwide story with failed governance; the other is the presumption that what Trump and MAGA offers has created a new coalition, a historic political realignment. Mathematically, you cannot have a 7 point swing from one party to the other and not also see partisan swings in particular demographic groups. In other words, anyone determined to believe the demographic story can find support for that story in the data, even if what’s going on is the “worldwide swing” story. But once again, the demographic essentialists remain committed to insisting that the swing was the sum of the movements within each demographic group, rather than stopping to pause and wonder whether a swing in the disaffected electorate necessarily includes members in each demographic group. 

I’d also caution that once again, the demographic essentialists are pedaling their ecological fallacies. (An ecological fallacy occurs when it is presumed what is true of a group is true of the individuals in the group.) Thus, remember that when all you hear is “group X swung 10 points towards Trump,” you are not being told whether 1 in 20 of the same group X individuals who voted in 2020 and 2024 switched from Biden to Trump, or whether 1 in 10 group X members who voted in 2020 didn’t vote in 2024. 

Although I’m going to do more to feed your data-lust soon, there are some important data points already that challenge the notion that Trump is a “winner.” He is just the latest not-loser in a two party system where someone always gets to be the not-loser. 

• House Republicans are running about 2 points ahead of Trump, doing so in 28 of the 46 states that have finished counting; 

• Trump will likely end up with the same 31 to 32 percent share of the eligible population he had four years ago (Harris is running a few points behind Biden’s share; that is the difference in outcomes); 

• In the Electoral College battlegrounds, where the campaign was most engaged, the swing from 2020 is much less than in the rest of the country, likely going from 0.8 percent for Biden to about 2.5 points for Trump (a 3.3 point swing) – compared to the rest of the country, which swung from 5.5 points for Biden to about 2.5 points for Trump (an 8 point swing).

• Oh, and by the way, turnout barely dropped in the Electoral College battleground states where Harris slipped the least (a “high turnout election”) but fell back almost to 2016 levels in the rest of the country where the swing was much greater (a “low turnout election”). 

• Again, per the Financial Times chart above, Democrats did relatively less badly than the incumbent parties.

To be clear, as I’ll develop later this week, those bullet points should in no way be taken as evidence that “Democrats did the best they could under the conditions.” Indeed, we’ll see that in 2020 Biden was as much the not-loser as Trump was in 2016 and is again in 2024.

Another “Victory for Democracy?”

Two years ago, I was sickened by self-styled democracy advocates who were so quick to celebrate the 2022 midterms as a victory for democracy. I wrote:

We urgently need to understand how it’s come to be that in January control of the House of Representatives will pass to a fascist, election-denying party, whose congressional members were complicit in a criminal conspiracy to overturn the election, and then did their best to obstruct justice and prevent accountability – and why, rather than asking how this came to be, the media and self-styled defenders of democracy are celebrating it as a victory for democracy.

By 2020, Varieties of Democracy (V-Dem) concluded that in terms of its commitment to democracy, the Republican Party was now “more similar to autocratic ruling parties such as the Turkish AKP and Fidesz in Hungary than to typical center-right governing parties.” 

And that was before the attempted insurrection, which, in a brief flash of clarity, Mitch McConnell clearly understood: 

January 6th was a disgrace. American citizens attacked their own government. They used terrorism to try to stop a specific piece of democratic business they did not like. Fellow Americans beat and bloodied our own police. They stormed the Senate floor. They tried to hunt down the Speaker of the House. They built a gallows and chanted about murdering the Vice President. They did this because they had been fed wild falsehoods by the most powerful man on Earth – because he was angry he'd lost an election. Former President Trump's actions preceding the riot were a disgraceful dereliction of duty…There is no question that President Trump is practically and morally responsible for provoking the events of that day.

As the nation “elects” its first convicted felon, its first president to attempt an insurrection when he lost, a Senate majority that will represent no more than 45 percent of the country, and likely a House majority  led by his enablers, we find even now that many who styled themselves “democracy defenders” are once again proving to be nothing more than professional democracy virtue-signalers, providing their own good-natured surrender as evidence that democracy still works. For an example of that, there’s no better place to start than with our incumbent democracy defender in chief (emphasis added): 

For over 200 years, America has carried on the greatest experiment in self-government in the history of the world — and that’s not hyperbole; that’s a fact — where the people — the people vote and choose their own leaders and they do it peacefully and where, in a democracy, the will of the people always prevails. 

Yesterday, I spoke with President-elect Trump to congratulate him on his victory.  And I assured him that I would direct my entire administration to work with his team to ensure a peaceful and orderly transition.  That’s what the American people deserve. …

Campaigns are contests of competing visions. The country chooses one or the other. We accept the choice the country made. I've said many times you can't love your country only when you win. You can't love your neighbor only when you agree. Something I hope we can do no matter who you voted for is see each other not as adversaries but as fellow Americans, bring down the temperature. 

To all of us who reluctantly voted for him in 2020 because they understood the alternative, Biden is, in effect, saying, “Remember how I told you had to vote for me because the threat was existential and the ‘soul of the nation’ was at stake? Turns out, not so much.” 

America on Trial

In August 2023, when Trump was seemingly facing trials for four separate sets of felonies, I wrote America on Trial: If Trump walks, we’re all guilty. I concluded by saying: 

I’m most struck by the contrast between the moral ambitions and certitude of the Trump years and the defeatism of the last two. In the Trump years, there was a palpable resurgence of moral clarity which reached a crescendo in the George Floyd protests and the national resistance to MAGA. But over the last two and a half years, too many sat on the sidelines reverting to a learned helplessness, more interested in hectoring and second guessing those who remained committed. If the Trump years were characterized by the nation’s greatest readiness to acknowledge its faults, the last two and a half were characterized by backlash – not just by those still determined to “make America great again,” but by a peanut gallery of opinionators who insist we discard our most basic moral commitments as political liabilities. 

In reality, the universe has no moral arc – only a thick rope for an eternal tug of war between human freedom and dignity on one side, and fascism, unfettered greed, and inherited caste on the other. If Trump – or another MAGA nominee – wins in November of next year, what we say and do now can and will be used as evidence against us by future generations.

Too many in privileged positions who once stood as allies have now sidelined themselves, opting to accept John Roberts’s cold “it’s just too bad” as if it were an inevitable truth. They dust themselves off and tell us, “We’ll get ’em next time.” What they still fail to see is that Trump’s “someone” on Fifth Avenue was never an anonymous bystander; it was always us — the America Langston Hughes envisioned.

O, let America be America again—
The land that never has been yet—
And yet must be—the land where every man is free.

And now, a captured Supreme Court majority accepts that if he pulls the trigger, it will be well within his “core constitutional authority.”

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

1. That’s assuming when all the votes are counted, Trump’s margin will be 2.3 points. Right now the running total has it at about 2.4 points, but with the remaining 5 or so million votes to be added coming from West Coast states. 

2. I am resisting the temptation to distract in the main text with this observation about the soggy thinking of pundits who keep telling us that Democrats depend on “low turnout” elections by telling us they did well in low turnout elections like the 2022 midterms (despite the fact they got wiped out in the states with the lowest turnout and did well in the states with the highest turnout) and did poorly in the presidential election, despite the fact that they did much worse in the states (and as this Journal article makes clear, the counties) with the lowest turnout and the best in those with the highest! 

3. According to VoteCast, 40 percent of the electorate had voted for Biden in 2020. Michael McDonald, the recognized expert, estimates that 154.8 million voted (149 million votes have been counted). That would mean there were 62 million Biden voters who cast ballots and 19 million who didn’t (he received 81 million in 2020). 

4. Again, according to the exits, 69 percent of those voting for Harris, or about 50 million people, said they were voting for her (as opposed to against Trump). In 2020, again according to the exits, only half of those voting for Biden said it had been for him (as opposed to against Trump). That’s about 40 million people. So Harris actually got more votes than Biden had from people who said they were voting for them. On the other hand, BIden received about 40 million votes from people they who said they were voting against Trump while Harris received only about 25 million such votes. 

5. Notwithstanding my longstanding reluctance to join the mad rush to judgment, there will soon be enough there to make some essential rebuttals or recontextualization of the conversation about the vote as interpretations consolidate. 

6. These two quotes are the epigraph to David Daley’s excellent Antidemocratic: Inside the Far Right's 50-Year Plot to Control American Elections.

7. If you’re wondering why I didn’t count the 2020 election cases that went against Trump, see Politicians in Robes III for more on these and other “exceptions” that prove the rule.

8. Yes, it’s weird because Trump I was not a popular vote victory.

9. Putting aside Bush who lost the popular vote in 2000 and Trump who lost the popular vote in 2016, since 1888, the only presidents to win with a smaller percentage margin than Trump were John F. Kennedy (0.2 percent), Richard M. Nixon (0.8 percent) and Jimmy Carter (2.1 percent).

10. It would be 10 for 10 except that extreme gerrymandering protected the House Republican majority in 2012 when more Americans voted for Democrats than Republicans, likely the only time a party winning a majority of the votes has not controlled the House. Since this chart has gotten much interest, here are the flips: 1960 (President (D)), 1968 (President (R)), 1976 (President (D)), 1980 (President (R), Senate (R)), 1986 (Senate (D)), 1992 (President (D)), 1994 (House (R)), 2000 (President (R)), 2006 (House (D), Senate (D)), 2008 (President (D)), 2010 (House (R)), 2014 (Senate (R)), 2016 (President (R)), 2018 (House (D)), 2020 (President (D), Senate (D)), 2022 (House (R)), 2024 (President (R), Senate (R))

11. The Mexican elections were held in 2024, but not included in the Financial Times set of ten” countries, Spain and Greece elections were held in 2023, and, TBH, I don’t know what’s up with Finland which held its election early this year.