That’s what is so harrowing about seeing the party in power ruthlessly discard norms to manipulate the composition of and expected outcomes in the courts. And conversely, that’s why there is no honest way to talk about the imminent consolidation of a conservative Supreme Court supermajority without addressing the Court’s past decade of decisions entrenching minority rule and facilitating the subversion of the democratic electoral process.
Senate Democrats asked Barrett some pointed questions about issues like voter suppression, but the primary narrative to emerge from her confirmation hearing was the perceived emergency presented by her views on the constitutionality of the Affordable Care Act. As Dahlia Lithwick has explained over at Slate, the real emergency runs much deeper than that. “Conservative activists have failed to accomplish their agenda through popular and legislative means, but have managed nonetheless to push their priorities through favorable courts,” Lithwick writes. “This capture of the federal judiciary, financed largely by a clutch of anti-government billionaires, has also enabled a steady erosion of even the illusion of majority rule.”
This frustrating, and largely obscured, story of two-way institutional degradation—through legislative manipulation of the courts and judicial complicity in political looting—is key to understanding the stakes of this nomination, and why, if Barrett is confirmed, so many see Court expansion not as a radical departure from business as usual but as a necessary structural response to a structural problem.
Three landmark decisions of the past decade, all made by a 5–4 conservative majority, sum up the Court’s role in building a jurisprudence best described as antidemocratic architecture. In its 2013 decision on Shelby County v. Holder, written by Chief Justice John Roberts, the Court gutted a crucial provision of the Voting Rights Act of 1965 that required states with a history of discriminatory voter suppression to obtain federal “preclearance” before making election changes. Proving the truth of Ginsburg’s powerful dissent, which declared that preclearance “remains vital to protect minority voting rights and prevent backsliding,” the affected states immediately moved to impose strict voter-ID laws, end early voting, pull funding from and close hundreds of polling places, and strategically purge voter rolls, with an overwhelmingly disproportionate effect on poor and minority voters.
Last year, in Rucho v. Common Cause, Roberts wrote another opinion barring the courts from playing any role in resolving even the most extreme partisan gerrymandering. The opinion was issued over a strongly worded dissent by Justice Elena Kagan, who explained that the gerrymanders under review “enabled politicians to entrench themselves in office as against voters’ preferences,” and “debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”