Nothing better explains the Republican rush to confirm Amy Coney Barrett to the Supreme Court than the record crowds that thronged polling places for the first days of early voting this week in Georgia and Texas.
The historic number of Americans who stood in long lines to cast their ballot in cities from Atlanta to Houston symbolizes the diverse, urbanized Democratic coalition that will make it very difficult for the GOP to win majority support in elections through the 2020s. That hill will get only steeper as Millennials and Generation Z grow through the decade to become the largest generations in the electorate.
Every young conservative judge that the GOP has stacked onto the federal courts amounts to a sandbag against that rising demographic wave. Trump’s nominations to the Supreme Court of Brett Kavanaugh, Neil Gorsuch, and Barrett—whom a slim majority of Republican senators appears determined to seat by Election Day—represent the capstone of that strategy. As the nation’s growing racial and religious diversity limits the GOP’s prospects, filling the courts with conservatives constitutes what the Princeton University historian Sean Wilentz calls “the right-wing firewall” against a country evolving electorally away from the party.
This dynamic suggests that the 2020s could reprise earlier conflicts in American history, when a Court majority nominated and confirmed by the dominant party of a previous era systematically blocked the agenda of a newly emerging political majority—with explosive consequences. That happened as far back as the first years of the 19th century, when electoral dominance tipped from John Adams and the Federalists to Thomas Jefferson and his Democratic-Republican Party. At the time—and in language today’s Democrats would recognize—Jefferson complained that the Federalists “have retreated into the judiciary as a stronghold … the tenure of which renders it difficult to dislodge them.”
Some lag time between the composition of the courts, particularly the Supreme Court, and the country’s electoral balance is built into the constitutional system, with federal judges receiving lifetime appointments.
But just as in earlier eras, conflict is likely to be on tap for the 2020s once Barrett’s seemingly inevitable confirmation cements a 6–3 conservative majority. Because the oldest Republican-appointed justices, Clarence Thomas and Samuel Alito, are only 72 and 70, respectively, this majority might hold the last word on the nation’s laws for at least the next decade. The oldest Millennials may be in their 50s before any of these Republican justices step down from the high court.
Republicans have built this Supreme Court majority over the past 30 years even as Democrats have consistently won more votes. If Joe Biden takes the popular vote in November, Democrats will have captured the most votes in seven of the past eight presidential elections. No party has done that since the formation of the modern party system in 1828. Yet Republicans have controlled the White House, and thus the right to nominate Supreme Court justices, for 12 of the past 28 years.
The pattern in the Senate is similar. Boosted by their dominance of smaller states between the coasts, Republicans have controlled the Senate for 22 of the 40 years since 1980. But according to calculations shared with me by Lee Drutman of the centrist New America think tank, if you assign half of each state’s population to each senator, the GOP has represented a majority of the American public for only one two-year period during that span: 1997 to 1998. Today, according to Drutman’s figures, the 47 Democratic senators represent almost 169 million people, while the 53 Republican senators represent about 158 million. Measured by votes, the disparity is even more glaring: The current Democratic senators won about 14 million more votes (69 million) than the Republican incumbents (55 million), according to calculations by Molly Reynolds, a senior fellow in governance studies at the Brookings Institution.
The result is a Republican Supreme Court majority that, to an unprecedented extent, embodies minority rule. Assuming Barrett is confirmed, five of the six sitting Republican justices will have been appointed by GOP presidents who initially lost the popular vote. (George W. Bush, like Trump, won the Electoral College and lost the popular vote in his first election.) And all three of Trump’s nominees will have been confirmed by senators who represented less than half of the American public. The same is true for Thomas, who was nominated by George H. W. Bush.
As the party is now constituted, the GOP’s chances of winning popular majorities in presidential elections—or representing most Americans in the Senate—will probably be even lower in the coming decade than they’ve been in the past few. Trump has relentlessly targeted the GOP on the priorities and resentments of non-college-educated, Christian, and rural white voters—groups whose numbers are either stagnant or shrinking.
Meanwhile, the key groups that favor Democrats—such as college-educated white voters, people of color, and adults who don’t identify with any religious tradition—are growing. Generational transition is accelerating all of these changes. Millennials were the most diverse generation in American history, but Generation Z is more diverse still. The unnamed generation younger than Gen Z is the first in American history in which people of color compose the majority, according to recent calculations by the Brookings Institution demographer William Frey.
In November, for the first time, the diverse generations born after 1981—Millennials and Gen Zers—will equal the preponderantly white generations born before 1964 as a percentage of eligible voters, Frey calculates. By 2024, those younger generations will almost certainly exceed them as a share of actual voters, with the gap widening quickly after that. Figures provided to me by Frey on the racial composition of the millions of young people who have turned 18 since the 2016 election offer a preview of what’s coming: Young people of color make up about 70 percent of those newly eligible voters in California and Nevada, two-thirds in Texas, three-fifths in Arizona, and about 55 percent in Georgia, Florida, New York, and North Carolina.
It’s not hard to see a collision ahead between a conservative Supreme Court majority and the priorities of those younger Americans, including climate change, racial equity, voting rights, gun control, and protections for same-sex couples. “This focus on judgeships that [Senate Majority Leader Mitch] McConnell has put in place is really the only way” that conservatives can see of “guaranteeing their ideological priorities,” Alvin Tillery, the director of Northwestern University’s Center for the Study of Diversity and Democracy, told me.
Although Barrett did her best to avoid answering direct questions this week, several exchanges with Democratic senators on gay rights, voting rights, immigration, and workplace discrimination offered a kind of flash-forward to the fireworks ahead if and when this Court strikes down legislation passed by a future Democratic president and Congress, such as a new Voting Rights Act. “Those decisions are only going to make the national [electoral] majority larger, fiercer, angrier,” Wilentz, the author of The Rise of American Democracy, told me.
America has been here before.
In the late 1850s, the newly formed Republican Party was emerging as the nation’s majority party, consolidating support in the more populous North behind a platform of opposing the spread of slavery into the nation’s Western territories. But at that point, seven of the nine Supreme Court justices had been appointed by pro-Southern, pro-slavery Democratic presidents who had dominated American politics for the previous 30 years. That resulted in the Dred Scott decision of 1857; widely considered among the most egregious Court rulings in history, that decision declared that Congress had no right to restrict slavery from the territories. “What Dred Scott did, in effect, was to declare the platform of the Republican Party unconstitutional,” Wilentz said.
A similar collision between a graying Court majority and a new electoral majority erupted in the 1930s. When Franklin Roosevelt won the presidency in 1932, coalescing the New Deal coalition that would dominate American politics through 1968, seven of the nine Supreme Court justices had been appointed by the Republican presidents who controlled the White House for most of the previous three decades. That Court—memorably labeled “the nine old men” by the muckraking columnist Drew Pearson—struck down so many of Franklin D. Roosevelt’s initiatives that the president ultimately proposed to enlarge the Court, with his famous court-packing proposal of 1937.
Events overran Dred Scott: The Civil War, and then the passage of the Thirteenth Amendment, banning slavery, rendered it moot. And while Congress shelved FDR’s plan to enlarge the Court, the threat had its desired effect; in “the switch in time that saved nine,” one justice in the conservative block flipped to provide a narrow majority for FDR’s key programs, including Social Security. Afterward, justices’ death and retirement allowed Roosevelt to appoint eight new jurists to the Court over his three-plus terms.
Jefferson’s irritation in the early 19th century may most closely resemble the frustration building among Democrats, as the GOP races to seat Barrett before an election that could provide Democrats with unified control of government, perhaps resoundingly. In the 1800 election, Jefferson ousted Adams, and his Democratic-Republican Party took the House and the Senate, beginning a quarter-century of complete political dominance. But in a long lame-duck session after their 1800 defeat, Adams’s Federalists passed legislation substantially expanding the number of federal judges. Adams, much like McConnell now, worked so tirelessly to fill those positions that Jefferson privately complained he had “crowded [them] in with whip & spur.” (Separately, Adams and the Senate rushed to confirm John Marshall as the Supreme Court’s chief justice after the Federalist in the job resigned weeks after Election Day.) Even “at 9 p.m. on the night of March 3, 1801, only three hours before officially leaving office, Adams was [still] busy signing commissions,” wrote James F. Simon in his book What Kind of Nation.
Jefferson responded by launching impeachment proceedings against several Federalist judges, including one that failed against a Supreme Court justice who had openly disparaged the new president’s party. Impeachment isn’t likely to be the Democrats’ response if they win the Senate and the White House next month. But Democrats—and the younger generations emerging as the core of their coalition—may be as unlikely as Jefferson to quietly submit if a Supreme Court that embodies an earlier electoral majority impedes the priorities of their own.