What Americans saw unfold on their screens this past week was a confirmation battle spotlighting familiar partisan divides. What they deserved was an open reckoning with what Judge Amy Coney Barrett’s elevation means for the country’s political and constitutional architecture.
The views of Justice Ruth Bader Ginsburg’s successor on health care and other substantive issues—such as abortion, gun control, immigration, and climate change—will obviously have enormous implications for individual rights and Congress’s ability to enact progressive legislation over the coming decades. But the divergence between Democrats and Republicans on these subjects falls within the bounds of small-d democratic argument. The same cannot be said about the conservative project to systematically undermine fair and free elections, and its reliance on the Supreme Court as the linchpin in that plan.
The United States is a representative democracy, which means, theoretically, that the will of the people is expressed through the election of officials who are entrusted with acting on their constituents’ behalf and in their best interests. The United States is also a constitutional democracy, in which this popular will is further circumscribed by a judiciary that interprets what is permissible under the Constitution and other laws of the land. From a design standpoint, few things could be more devastating to democracy in this country than the use of one-half of this system to break the other.
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.”
The forerunner to and crucial backdrop of these decisions is the Court’s divided 2010 ruling on Citizens United, in which it struck down a long-standing campaign-finance law prohibiting independent expenditures by corporations on First Amendment grounds. The ruling—and lower-court decisions modeled after this expansive take on what it means for corporations to be treated as people—has unleashed a torrent of dark money into local, state, and federal elections, and has been crucial to the GOP’s control over states’ redistricting efforts and to the success of conservative voting-restriction campaigns.
Voter suppression, gerrymandering, and the untraceable corporate and special-interest money used to bankroll both: This is the trifecta that, in 2018, Eric Holder, formerly President Barack Obama’s attorney general and now the chairman of the anti-gerrymandering nonprofit National Democratic Redistricting Committee, argued “have to be seen as part of a whole.” That whole is “a system where a well-financed minority that has views inconsistent with the vast majority of the American people runs this country.”
The strange circumstances of Barrett’s nomination have only underscored the two-way channel between the future of the judiciary and the integrity of the electoral system. The nomination wasn’t just made weeks before a presidential election, in defiance of the reasoning used back in 2016 to block Obama’s nominee, Merrick Garland, from filling the seat of Barrett’s old boss, the late Justice Antonin Scalia. It was made by an incumbent president who has refused to commit to a peaceful transition of power, urged delaying the election, alleged without evidence that the vote will be compromised by “massive fraud,” deployed thousands of lawyers and volunteers working for his campaign across the country to watch polls and challenge election results, and publicly expressed his expectation that the Supreme Court will settle any election disputes in his favor.
Repeatedly, Barrett was asked to weigh in on this conduct. Repeatedly, she declined to answer. In one of the most surreal moments of the hearing, Senator Cory Booker asked: “Do you believe that every president should make a commitment, unequivocally and resolutely, to the peaceful transfer of power?” Judge Barrett explained she did not want to get involved in a current “political controversy,” and only when pressed did she describe peaceful transitions, in the abstract, as “part of the genius of our Constitution.” Her response perfectly captured the unthinkable conditions Americans are being told to accept as subjects of normal partisan disagreement—and, under those conditions, the pointless farce of the hearing itself.
Antidemocratic architecture is the answer to those on the right—and on the left—who insist on couching Barrett’s confirmation in the language of individual ideology and personal character. The problem was starkly illustrated by the high-profile endorsement offered by Noah Feldman, a professor at Harvard Law School, late last month. Feldman did not merely argue that Barrett’s brilliance and reputation as a “sincere, lovely person” should win her a place on the nation’s highest bench. He went so far as to declare: “When she is confirmed, I am going to accept it as the consequence of the constitutional rules we have and the choices we collectively and individually have made.”
On display in the Senate chamber this week was the same frustrating elision of both the structural machinations that have brought us to this historical moment, and the repercussions sure to flow from it—capped off, almost satirically, with a maskless bipartisan hug between Senate Judiciary Chair Lindsey Graham, who recently refused to get tested after possible viral exposure, and the ranking member Dianne Feinstein. This is what surface-level political civility looks like. Far from the consequence of a fair, agreed-upon system, the confirmation of three conservative justices for vacancies created during two presidential administrations will mark an enormous symbolic and strategic triumph for the conservative project to reconfigure “the constitutional rules we have” and ordinary Americans’ ability to “collectively and individually” make meaningful electoral choices. It is a project that has been advanced with the cooperation of the Supreme Court. And it is a project that, in the face of an ever more diverse, progressive citizenry, can be sustained only through the cooperation to come.
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