Supremely Undemocratic

Picture by Hilary Stone Ginsberg

I just read a most frightening book: The Agenda: How a Republican Supreme Court is Reshaping America, by Ian Millhiser, a senior correspondent for Vox. Frightening because the Supreme Court, unelected and not answerable to the public due to the life tenure of judges, is reshaping American politics and society in an undemocratic direction not favored by a majority of voters.

The Supreme Court’s recent activism fills a void left by partisan gridlock in Washington. Congress has passed little substantial legislation in the last decade. This may be changing with Democrats in control of Congress and the presidency, but unless Democrats are willing to eliminate the filibuster in the Senate, President Joe Biden’s ambitious plans probably will come to naught. Besides, the rightwing tilt of the nation’s high court may well result in the Supreme Court overturning much of whatever legislation Democrats succeed in passing.

While Congress dithered, a conservative Supreme Court was busy, dismantling campaign finance laws, eroding voter protection legislation, weakening Obamacare, undermining the separation of church and state, removing safeguards against sexual and racial harassment, diminishing rules shielding the environment from polluters, and granting employers increased power over hours, wages, and the safety of workers.  Conservatives once decried “judicial activism,” but now that Republicans represent a minority of the nation, the courts have become the last bastion of conservative ideology. Republicans under GOP Senate leader Mitch McConnell have been ruthless in insuring Republican domination of the nation’s courts. 

The reshaping of American law by the Supreme Court under Chief Justice John Roberts will continue in the term starting this October, with the high court poised to overturn abortion protections and end affirmative action in higher education. In addition, the court will hear a lawsuit backed by the National Rifle Association that asserts the constitutional right to carry a weapon outside the home. The case challenges a century-old New York law that requires citizens demonstrate a legitimate self-defense need in order to obtain a permit to carry a concealed weapon. 

All this is being done by an undemocratic branch of the United States government. The Supreme Court has always been far removed from popular will. The justices, appointed by the president and confirmed by the Senate, hold lifetime jobs and short of some egregious actions warranting impeachment and conviction, they cannot be removed from office. 

Millhiser describes how the Supreme Court has eviscerated voting rights protections in the last decade and predicts further encroachment on equal access to the ballot. He notes that the Supreme Court can weaken democracy because the American constitutional system is, itself, not democratic since not all votes are equal. Donald Trump was elected president in 2016 even though his opponent received three million more votes. While the numbers fluctuate with each election, Republican senators represent 40 million or so fewer people than Democratic senators because conservative red states like Wyoming have the same number of senators as liberal blue state California, even though the latter has a population nearly 70 times greater.

To put it starkly, the last three justices confirmed to the court — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — were appointed by a president who lost the popular vote and confirmed by senators who represent less than half the country. These three justices — all relatively young — have tipped a conservative-leaning court to the far right. The result: An undemocratic cohort of justices is weakening American democracy. 

Much ink has been spilled describing the judicial attack on voting rights. But, as noted above, it is not the only area in which the Roberts-led Supreme Court is removing democratic protections. Of particular note is the attack by the court — led by Neil Gorsuch — on what is often referred to as the “administrative state.”

Governing a modern industrial and technological society is complex. Members of Congress cannot and do not know all the details required in, say, protecting the environment or regulating businesses. All Congress can do — and should do — is pass the broad outlines of policy, such as establishing the limits of permissible carbon emissions into the environment. When Congress acts in such a manner, it considers the best technology available at the time the law is enacted. But, technology changes, so to keep up with these changes, Congress routinely delegates to the various departments and agencies of the executive branch the power to establish rules. And, these departments and agencies may change the rules as needed given technological improvements and societal needs. 

Until recently, the Supreme Court has ruled in a number of cases that it is best to allow the executive agencies to flesh out ambiguities in law and to write rules to enforce congressionally passed laws. Gorsuch disagrees, arguing that it is better to give judges, who he says are “independent” of popular whim, this power. Gorsuch would place the rule-writing power, as Millhiser writes, “in the hands of the closest thing the United States has to a medieval nobility — unelected judges who serve for life.”

Gorsuch argues that judges — unlike federal regulators who are answerable to an elected president — are above politics. The justice conveniently forgets that he has his current job because Senate Republicans used raw political power to keep President Barack Obama’s appointee — Merrick Garland — off the bench to put instead a conservative — Gorsuch — on it. Republican Senators knew full well that a Republican judge like Gorsuch is far more likely to issue a conservative judicial decision than a Democratic judge.

Millhiser avoids discussing the remedies for curbing the undemocratic tendencies of an undemocratic institution bent on abrogating democratic rights, but his book provides fodder for calls in recent years to reform the court. Among the suggestions for change are increasing the number of justices (“court-packing”), limiting the tenure of justices, allowing every president to appoint two new justices, and creating a system to select justices on a bipartisan basis.

Whatever the remedy or remedies, the need to act is urgent to insure the continuation of American democracy, which is threatened by the conservative justices who dominate the Supreme Court.

Posted August 31, 2021

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