SCOTUS: Slow-Motion Constitutional Coup
The Supreme Court has been hollowing out the principle of "consent of the governed."
Note: This is an archive post from my off-the-record “Weekend Reading” newsletter.
This week, the Supreme Court yet again sided with the Republicans to overrule the Wisconsin state supreme court’s map for state legislative districts. For me, this immediately brought to mind SCOTUS’s ruling in April 2020, when it blocked extended voting in that month’s Wisconsin primary. (The extension was to accommodate greater mail voting, because, as Ginsburg said in her dissent, “gathering at the polling place now poses dire health risks.”)
As has been well documented in many places, for nearly the entirety of the nation’s history the Supreme Court has acted to protect and benefit the already powerful at the expense of minorities, working people, and hopes for robust democratic elections.1
The Warren Court was one of the exceptions, of course, but a relatively brief one in the overall timespan. It’s also well documented that overturning the decisions of the Warren Court has been central to the Republican project, as every Republican president, beginning with Nixon, has sought to radically reshape the judiciary – both as a substantive goal in its own right and for the political gain of cementing the allegiance of “cultural conservatives.”
Especially since 2000, the Supreme Court has systematically been limiting voting rights, as well as hollowing out the principle of “consent of the governed” by making it harder for our elections to reflect the actual will of the majority. (Key SCOTUS decisions below.) And in all but one of those cases, the damage was done by a narrow 5-4 majority, with supposed centrists like Anthony Kennedy steadily contracting democracy.
Swallowing Fruit from the Poisoned Tree
Despite our serial outrage at each Supreme Court decision, we rarely step back to take stock of the damage these rulings can inflict. To take a single clear example, let’s look at what used to be called the “Blue Wall” states of Michigan and Wisconsin. It’s difficult to remember that Obama won those states by 16.7 and 14.1 percent, respectively, in 2008. But SCOTUS decisions to allow blatant partisan gerrymandering and unlimited independent expenditures combined to drive the counter-majoritarian political trajectories of those states. In both states, billionaires backed antidemocratic candidates for governor (Walker and Snyder), and bankrolled the successful effort to flip control of the Wisconsin state house and senate, as well as the Michigan state house, to Republicans.
Republicans used their fresh trifectas over both legislative houses and the Executive to redraw state legislative lines so that, in 2012, Republicans held 54 percent of the seats in the Michigan state house despite getting only 46 percent of the vote, and 64 percent of the seats in the Wisconsin state house despite getting only 52 percent of the vote. Republicans kept their state house majorities throughout the decade despite losing statewide in about half of the elections in the 2010’s.
The partisan attack on independent institutions extends to the courts that will rule in voting rights matters. While the Michigan Supreme Court remains divided, the Wisconsin Supreme Court has made blatantly partisan decisions upholding Republican efforts to ensure that they win elections. But state courts are a target for Republicans precisely because they are the front lines of defense of voting rights, and a tilted bench can be expected to throw contested election questions to Republicans. Some state courts, like those in North Carolina and Pennsylvania, have held the line on voting rights and were recently upheld by the Supreme Court, but those victories don’t begin to undo the extreme damage done by the vast majority of decisions that the US Supreme Court has handed down.
This story is particularly well told in Dan Kaufman’s The Fall of Wisconsin: The Conservative Conquest of a Progressive Bastion and the Future of American Politics, which “traces the ways Wisconsin’s century-old progressive legacy has been dismantled in virtually every area: labor rights, environmental protection, voting rights, government transparency.” In a paper titled “After Citizens United: How Outside Spending Shapes American Democracy,” researchers show the extent to which the Citizens United case “increased the electoral success of Republican candidates, thereby leading to more ideologically conservative legislatures.” Additionally, Jake Grumbach documents that since 2000, Republicans nationwide have used their trifectas to become laboratories of democratic backsliding.
The Slow-Motion Coup Happening in Plain Sight
Some may take solace in the fact that the Supreme Court, despite its current 6-3 GOP majority, rejected every appeal Trump made to cast doubt on the results of the 2020 elections. I wouldn’t. The Court’s preferred approach has been to change the rules in order to make elections less democratic, and to defend the already anti-democratic election rules whenever possible, but to be more cautious about making consequential judgments that violate the rule of law in particular high-profile cases. (Bush v. Gore is the obvious exception, but understandable given the all-or-nothing stakes. In that case, however, the Supreme Court announced that there is no individual right in the Constitution to vote for the President.)
Thus, the conservative justices are “rule of law” Republicans in the same way that Brad Raffensperger is – committed to changing the rule of law to make it radically less democratic. In our rush to see everything in purely partisan terms, we miss a crucial characteristic of the Republican judiciary – that in the rare cases when corporate priorities conflict with MAGA’s extreme ideological priorities, the judiciary is very likely to protect corporate interests, including the market stability that a functioning democracy affords. The GOP justices are playing the long game: slowly and quietly squeezing democracy out of our politics until all that’s left behind is a minoritarian state.2 However, this is not to say that the six GOP-appointed Supreme Court justices are not committed partisans as well. Three of the six were part of the Bush legal team in 2000 – Roberts, Coney Barrett, and Kavanaugh.
It is against this backdrop that we prepare ourselves for what SCOTUS will say about the “Independent State Legislature Doctrine” (ISL). In 2020, when Trump implored Republican legislators in the states that Biden had won to ignore the results and designate Trump electors instead, it was on the basis of a legal theory that hasn’t been taken seriously for more than a century – that Article II of the Constitution accorded state legislatures that power. In two recent redistricting decisions that were otherwise favorable, four SCOTUS justices expressed support for this approach3 and urged further consideration of the ISL. (Weekend Reading ISL explainer, here.)
Democratic Legitimacy Lost
Remarkably, all but completely absent from the court’s reasoning in nearly every ruling is consideration of whether its decision will make it more or less likely that election results will reflect the will of the majority, the foundational basis for considering whether the consent of the governed has been given. Instead, for example in Shelby, Roberts literally invented a “fundamental principle of equal sovereignty” among the states, something that even conservative jurist Eric Posner called “the lamest of reasons” for striking down part of the Voting Rights Act.
If you know Monty Python, you’re likely familiar with the “‘Tis But a Scratch” scene with the Black Knight, which provides a terrific visual metaphor for our predicament. Twenty-two years after Bush v. Gore, we still find ourselves in the same trap: swearing allegiance to the rule of law while the Republican Supreme Court majority continuously rewrites the law to hack off the limbs of our democracy one by one.
Crawford v. Marion County Election Board. (2008) In a 6-3 decision, the centrist Stevens upheld the Indiana voter ID law. (Subsequently, Stevens regretted his position, reflecting that it was “a fairly unfortunate decision.”)
Shelby County v. Holder. (2013) In a 5-4 decision, Roberts declared section 4 of the Voting Rights Act unconstitutional. Section 4 provided the basis for determining which states were covered by pre-clearance (Section 5).
Husted v. A. Philip Randolph Institute. (2018) In a 5-4 decision, Alito upheld Ohio’s extraordinarily aggressive voter file purge practices.
Vieth v. Jubelirer. (2004) This was a challenge to a blatantly gerrymandered map drawn by a Republican trifecta. In a 5-4 decision not to intervene, Scalia wrote that all claims related to political (but not racial) gerrymandering should be nonjusticiable, meaning that courts could not hear them.
Rucho v. Common Cause. (2019) In a 5-4 decision, Roberts slammed shut the possibility of court review of claims of partisan gerrymandering, indicating that the framers intended this be left to state legislatures.
Wisconsin Legislature, et al. v. Wisconsin Elections Commission, et al. (2022) In an unsigned decision issued through the shadow docket, the court overturned a state court ruling that the creation of an additional majority-Black district was justified.
Buckley v. Valeo. (1976) Ruled that certain campaign spending was protected as “speech”under the First Amendment, and therefore could not be capped.
First National Bank of Boston v. Bellotti. (1977) In a 5-4 decision, Powell extended Buckley to overturn restrictions on corporate spending on ballot initiatives.
Federal Election Commission v. Wisconsin Right to Life. (2007) In a 5-4 decision, Roberts held that certain limitations on issue ads were unconstitutional.
Citizens United v. Federal Election Commission. (2010) In a 5-4 decision, Kennedy ruled restrictions on independent spending by corporations unconstitutional under the first amendment.
McCutcheon v. Federal Election Commission. (2014) In a 5-4 decision, Roberts held that aggregate limits on political giving by an individual are unconstitutional.
For example, Supreme Inequality (Adam Cohen), Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted (Ian Millhiser), The Most Dangerous Branch (David Kaplan), A People’s History of the Supreme Court (Peter Irons), Supreme Injustice (Paul Finelman), Black Mondays: Worst Decisions of the Supreme Court (Joel Joseph).
Alito, Gorsuch, Thomas and Kavanaugh.