Everyone Wants the Supreme Court to Thwart Democratic Majorities

After Senate Republicans confirmed Brett Kavanaugh, a conservative jurist, to the Supreme Court, the progressive feminist writer Rebecca Traister argued in New York magazine that they are “shoring up the power of the minority in this country over its majority population, and in doing so, acting to subvert the founding promises—of democracy and representation—which have always been hollow, yet have been the notions to which that minority power has clung with dishonest reverence.”

In her estimation, Kavanaugh and his fellow GOP appointees to the Court “will likely work to dismantle workplace and collective bargaining protections, what’s left of affirmative action, abortion rights and perhaps access to birth control itself, and of course the promise of full enfranchisement—the true and most powerful tool of our theoretical democracy.”

Over at The Weekly Standard, the conservative writer Christopher Caldwell echoed the notion that the fight over the lifetime nomination to the Supreme Court “shows what American politics is, at heart, about.” He wrote:

It is about “rights” and the entire system that arose in our lifetimes to confer them not through legislation but through court decisions: Roev. Wade in 1973 (abortion), Regents v. Bakke in 1979 (affirmative action), Plyler v. Doe in 1982 (immigrant rights), and Obergefell v. Hodges in 2015 (gay marriage). The Democrats are the party of rights. As such, they are the party of the Supreme Court. You can see why Ted Kennedy claimed in a 1987 diatribe that the Yale law professor Robert Bork would turn the United States into a police state. For Democrats, an unfriendly Supreme Court is a threat to everything.

In that telling, it’s the Democrats who want to use the court as a tool to shore up the power of a minority to confer rights over the objections of a majority.

But consider what each account elides. For starters, nearly all progressive Democrats favor Supreme Court rulings that stop democratic majorities from passing popularly supported laws restricting abortion, birth control, sodomy, and same-sex marriage. Insofar as they fear Kavanaugh’s influence on any of those matters, their worry is precisely that he may return them to the people. He obviously won’t rule that the Constitution forbids any of them.

He might rule that the Constitution forbids the use of race in college admissions. If he does, he’ll be staking out a view subscribed to by a majority. “Americans continue to believe colleges should admit applicants based solely on merit (70%), rather than taking into account applicants’ race and ethnicity in order to promote diversity (26%),” Gallup noted in 2016, adding that “these findings suggest Americans would disagree with the Supreme Court’s recent decision in Fisher v. University of Texas, in which the court essentially ruled that colleges can continue to consider race as a factor in their admissions decisions.”

Most conservative Republicans, meanwhile, favor jurisprudence that would forbid majorities from restricting gun ownership, limiting campaign donations, or using race as a factor in university admissions.

Americans are fortunate that neither major party favors pure democracy and both seek to limit the coercive power of popular majorities.

To be sure, some antidemocratic actions are objectionable. To cite one example, Republican efforts to make it harder for Democratic constituencies to vote are both shameful and un-American. The use of procedural controls to deny Merrick Garland an up-or-down vote in the Senate was, I think, a wrongheaded transgression against a democratic norm. I vacillate on whether the Electoral College is worth retaining.¹  

Still, almost every American can proudly cite anti-majoritarian provisions in the Constitution that they rightly want the Supreme Court to uphold and protect. There’s a lot of disagreement about the details.

But adjudicating whether an antidemocratic, “tough luck, majority” stance on a given issue fulfills or subverts this republic’s founding promise requires more than mere invocations of “democracy” or “representation.” And since the Constitution’s enumeration of certain rights “shall not be construed to deny or disparage others retained by the people,” it requires more than merely noting that a new right was recognized.

Don’t be misled by analysis implying that either side is consistent in a commitment to majority rule or in its aversion to deliberately thwarting it.