Many Americans imagine the federal courts as a guardrail for our democracy. At times, they have been.
It was the Supreme Court that struck critical blows against racial segregation, abortion bans and laws targeting LGBTQ or interracial relationships. And lower courts have often been an early check on the Trump administration.
But these days, America’s deepening polarization is running headlong into anti-democratic deficiencies hardwired into our Constitution. As the trend accelerates, the courts are poised to put a nail in the coffin of America’s already ailing democracy — unless progressives do something about it.
Consider a few numbers.
First, remember that the Electoral College helped Donald Trump become president despite losing the popular ballot by nearly 3 million votes. The Electoral College favors whiter, more conservative states, and so does the Senate. Because 40 million Californians get the same number of senators as 575,000 Wyomingites, 2016 also saw Republicans win the Senate — despite getting 11 million fewer votes than Democrats.
Next, remember that Brett Kavanaugh — a Trump-nominated Supreme Court justice facing credible sexual assault allegations, and who most Americans opposed — got a lifetime appointment to the court when senators representing just 44% of Americans confirmed him.
In short, the United States now has a Supreme Court far to the right of most Americans. It was cemented by a president who lost the popular vote, and confirmed by a Senate majority that lost it by even more. That’s three branches of government with no popular mandate — and it’s only going to get worse.
Even before Trump, the Supreme Court was chipping away at democracy.
With Citizens United, it opened the floodgates to an unprecedented deluge of corporate cash in elections. With Shelby County vs. Holder, which gutted the Voting Rights Act, it green-lit GOP-controlled states to shutter thousands of polling places and erect new barriers to voting.
Under Trump, it’s getting worse. The court recently refused to hear challenges against extreme gerrymandering, which has helped Republicans hold onto majorities — and often supermajorities — even in statehouses and congressional delegations where they lost the popular vote.
Meanwhile, it has defied lower courts to let the president ban travelers from majority-Muslim countries and spend money lawmakers didn’t appropriate on a border wall most Americans don’t want. In 73 5-4 rulings where GOP donor interests have been at stake under this court, the donor interests won 73 times.
In future rulings, watchers worry the Supremes could make the Dreamers eligible for deportation, criminalize nearly all immigrant advocacy, and stop federal agencies from regulating virtually anything related to public health, the environment, or big business. Landmark rulings like Roe v. Wade are also under threat.
Such a court seems unlikely to buck the administration on anything related to the president’s taxes, corruption or impeachment. “What goes around comes around,” Kavanaugh snarled during his tense confirmation hearings.
Meanwhile, the GOP-ruled Senate is packing the lower courts even more aggressively with conservative ideologues — more than 150 so far. That’s thanks in part to GOP Senate leader Mitch McConnell’s stonewalling of Obama court appointments, including the Supreme Court seat now held by Trump nominee Neil Gorsuch.
Several of these judges are rated “not qualified” by the American Bar Association. But their job isn’t to weigh the law carefully — it’s to issue reflexive right-wing rulings, like the judge in Texas who struck down the entire Affordable Care Act after GOP tax cuts ended the individual mandate. Observers called the ruling “absurd,” but it’s a harbinger of things to come.
If progressives win power in 2020, they should immediately impose term limits on these lifetime appointments, create and fill new judicial positions, and otherwise reverse this extreme gerrymandering of our judiciary. To help, they could also admit new states (D.C.? Puerto Rico? Guam?) to re-balance the Senate and Electoral College, enfranchising millions of U.S. citizens in the process.
Extreme? A little. But if nothing changes, we’re on track for a generation of rule by right-wing minority governments, a steady rollback of democratic rights, and corporations freed from even the regulations needed to sustain life on this planet. And with voting difficult or irrelevant in much of the country, there will be no foreseeable constitutional remedy.
The left can’t let that happen, especially not for love of norms the right has lost all interest in observing. Progressives, pack the courts!