The Right Had a Plan and It Worked

Here’s an eight-minute video that explains the origin of today’s reliably extreme right-wing Supreme Court. (The same method is now being applied in other parts of the culture, like business and education).

Warning: The sound on the video comes on at full blast. Why do they do that?

A Plan To Increase Majority Rule

Most bills introduced in Congress never make it out of committee, let alone receive a vote on the House or Senate floor. But even when a member of Congress knows their bill is doomed, they can still have a good reason for introducing it. For one thing, it can identify a problem and let people know how to fix it. 

Earlier this week, Rep. Sean Casten, a Democrat who represents the 6th district of Illinois southwest of Chicago, submitted two bills as part of what he called “A Common Sense Vision for American Democracy”. As part of the same package, he proposed a resolution suggesting an amendment to the Constitution.

He gave a very good speech explaining why he did this. He argued that the principal reason Congress rarely accomplishes anything important, even when it’s something favored by most voters, is that minority rule is built into our system of government. It’s a rather obvious point, but worth repeating: if majority rule was a bigger feature of our government, it would be easier for our government to do things the majority of us want our government to do.

I recommend reading or watching Rep. Casten’s whole speech (although he attributes a point of view to his Republican colleagues that they don’t share). Here’s some of it:

People say: Why is it that people in this institution are failing to do things that are overwhelmingly popular?

When we see those little polls that say Congress has a 20 percent approval rating, that should be a red light that we got to fix things…. If we are going to do that, we have to first acknowledge some unpleasant, if self-evident, truths.

First of all, … our Founders actually weren’t perfect. They weren’t Moses. They weren’t Jesus. They were fallible people just like us….

The second thing we got to acknowledge is that our Founders didn’t actually think the Constitution was perfect….

The third thing, and this is the one that I think is most important for us here today, is that our Founders did not understand democracy nearly as well as we do…. They were an amazing group of people. They did an amazing thing, but we have 233 years of wisdom that they did not have….

What’s clear, the answer to that question, ‘‘why is it that we can’t do things that the majority of the American people want?’’ is in large part because while our Founders paid lip service to democracy … they didn’t trust that people in a fully democratic society could elect a President, so they created the Electoral College. They created the Senate expressly to frustrate the will of the majority….

When it was founded, the biggest state had 10 times the population of the smallest state. Today, it is up to almost 70. So, we have massively disenfranchised huge numbers of … people because of a structure that was designed to disenfranchise large, but not as big, numbers of people.

We kick a bill out of here, you can get 50 votes in the Senate with people representing 17 percent of the United States population.

When our voters ask us why we can’t get things done that are supported by the will of the majority, it is built into our system.

And then finally, our Founders created the Supreme Court with largely no checks and balances — lifetime appointments, no ethics obligations….

Remember, Marbury v. Madison that significantly expanded the power of the Court relative to the legislative branch came after the Constitution was signed. This is a different structure than what they contemplated, and effectively gave the Supreme Court not the ability to write laws but darn close to it, because you get one Supreme Court Justice that flips the majority, and all of a sudden, you can say that our work here, all the good work we put in [in Congress], is unconstitutional and overturned …That is not majoritarian….

In a healthy democracy, we should all be competing for that mythical center of the electorate. We shouldn’t be sitting there and saying: I have a 20-year plan to stack the Court with Justices who will agree with me to overturn the will of the American people.

We shouldn’t be sitting there saying: Well, I can control the Senate if I just find a couple of senate seats in a couple of low-population states with cheap TV markets….

We will be healthier, both of our parties, if we commit ourselves to the idea, as Jefferson said, that if we are not representing the will of the majority, because no form of government ever consistently does, let’s fix it so that we do, which brings me to the three bills we introduced today.

The first bill is a constitutional amendment to add 12 national at-large Senators….Imagine what would happen if 10 percent of the Senate had an interest in representing the will of the American people….It would make it that much harder for them to filibuster a good bill that comes out of here because why would you filibuster something that is supported by the majority of the American people?

It would also, by adding 12 senators, add 12 more electors [to the Electoral College] who represented the popular vote. That would reduce the number of scenarios where we could have the popular vote winner lose an election to the electoral vote winner. That is the first bill.

The second one is to expand this House, and in the next Census, 2030, say let’s go out and look at the smallest State in the Union and say the size of that State is going to set the size of a congressional district, because if we are the House of Representatives, we should make sure that all of us represent as close as we can the same number of people.

The House hasn’t grown since 1911. The population of the United States has grown three and a half times since 1911…. So let’s expand the House and make us more representative. If we did that based on the last Census, that would add something like 130 seats to this House [e.g. California would have 67 representatives instead of 52; Florida would have 37 instead of 28].

Again, that would add more votes to the Electoral College. It would make [presidential elections] more representative.

And then the third bill … is to restore the Supreme Court to their Article III responsibilities….Article III of the Constitution lays out the scope of the Supreme Court. It says that they are responsible for matters of admiralty law, maritime law, matters relating to ambassadors, disputes between the States, and appellate jurisdictions the Congress may see fit to provide from time to time.

If we have a Court that is consistently not fulfilling the will of the American people, if we have a Court that is consistently encroaching on our power here in this Chamber, overturning our judgments and what we do, it is in our power to … reduce their appellate jurisdiction…. If the courts are going to say that a law we passed is unconstitutional, we will select from a pool of circuit court judges, appellate court judges, at random, and it will take at least 70 percent of them to overturn a bill…It takes two-thirds for us to overturn a veto, right? Let’s hold them to the same standard….

Also, it would eliminate the shadow docket. Why do we allow ourselves to live in a world where the Supreme Court can just decide to rule on something and not even explain it? Let’s get rid of the shadow docket.

I am not perfect. You aren’t perfect, Mr. Speaker. None of us in this room are perfect. Our Founders weren’t perfect, but we are perfectible, and we have a job that affords us the opportunity and the responsibility to make our government a little bit better, a little bit more responsive, a little bit more democratic.

Unquote.

It may take a long time to do the kind of things Rep. Casten (and others) want to do. It may never happen. But more of us should understand why the president, Congress and the Supreme Court aren’t as representative as they should be. Maybe more of us will vote for politicians who want more majority rule. Maybe one day somebody we vote for will do something about it.

Next time, however, I’ll offer a corrective to Rep. Casten’s speech. He may have been giving his Republican colleagues the benefit of the doubt, but he claimed they believe in something they really don’t.

The Supreme Court Judged by a Judge

Jed Rakoff is a Senior United States District Judge. In a book review for the New York Review of Books, he summarizes the history of the Supreme Court from the 19th century to the 21st:  

Over the course of American history, the US Supreme Court has usually been the most conservative of the three branches of government, often to a reactionary extreme. Indeed, an objective observer might well conclude that it has frequently encouraged our nation’s darkest tendencies.

In the decades immediately preceding the Civil War, the Court not only rigidly enforced slave laws but also declared that even free African Americans were not US citizens (Dred Scott v. Sandford, 1857). It reduced Native Americans from sovereign nations to wards of the state (Cherokee Nation v. Georgia, 1831), which was free to remove them from their treaty-prescribed lands and send them on the deadly Trail of Tears to bleak reservations hundreds of miles west. In the decades following the Civil War, it undermined Reconstruction (the Civil Rights Cases of 1883), legitimized Jim Crow (Plessy v. Ferguson, 1896), denied women the right to vote (Minor v. Happersett, 1875), and treated union activities as illegal conspiracies (Loewe v. Lawlor, 1908).

In the first decades of the twentieth century, the Court went to great lengths to hold progressive legislation unconstitutional (for example, in Lochner v. New York, 1905), especially laws that sought to protect women and children from exploitation (Adkins v. Children’s Hospital, 1923). And when, in response to pressure from (and ultimately appointments by) President Franklin Roosevelt, the Court somewhat relaxed its disapproval of federal social welfare legislation, it continued in many cases to show a callous disregard for the rights of individuals and minorities, as demonstrated by such decisions as its cavalier approval of the internment of loyal American citizens of Japanese descent during World War II (Korematsu v. United States, 1944).

There was a brief period in the 1950s and 1960s when the Court sought to recognize its past mistakes and move forward, and while the advent of the Warren Court in 1953 was something of a fluke (no one remotely expected that Earl Warren and William Brennan—both nominated by a Republican president, Dwight Eisenhower—would develop into the great champions of liberty they became), in its relatively short duration it demonstrated how the Court could, if it wished, be a leader in the enhancement of civil rights and the protection of minorities. But beginning in the 1970s, the Court gradually resumed its traditional conservative stance, for example by limiting the Warren Court’s efforts to combat police misconduct (City of Los Angeles v. Lyons, 1983). And now, thanks to [the last president’s three] appointments, the current majority has reduced some of the Court’s most progressive past decisions to ashes….

Judge Rakoff then gets to the book he’s reviewing: Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment. (I’m skipping most of the long review.) Rakoff argues that Justice Frankfurter, a progressive appointed by one of our most progressive presidents, Franklin Roosevelt, was too restrained in his rulings:

Liberals were initially thrilled by Frankfurter’s elevation. But they quickly learned that his conception of a “liberal” Court was rather different from theirs. The conflict was even more noticeable within the confines of the Court, where Frankfurter’s belief that progress best lay in limiting its review of state and federal legislation so as to let the democratic political process hold sway repeatedly clashed with the view of its newest member, William O. Douglas, that the Court’s responsibility was to protect the civil rights and civil liberties of minorities and individuals…..

One of the many virtues of [Democratic Justice] is the wealth of detailed evidence he provides for each of his assertions. His own assessment of Frankfurter’s virtues and faults is that he was prescient in seeing how the supposed lack of restraint of Warren Court jurisprudence could come back to haunt American liberals once the Court returned to its more traditional conservative stance. My view, however, is that Frankfurter got so carried away with his philosophy of restraint that he failed to recognize basic principles of checks and balances inherent in our constitutional design, and in particular the natural purpose of the Court to protect individuals and minorities against excesses in which elected officials and legislators too often engage.

Moreover, it is easy to pay lip service to a particular judicial philosophy in order to achieve any desired result. For example, the Court’s recent decision in Dobbs v. Jackson Women’s Health Organization, overruling Roe v. Wade, can be interpreted by its supporters as an exercise in Frankfurter-like restraint that leaves the issue of abortion to state legislatures, while its opponents can view it as the Court’s refusal to exercise its inherent responsibility to protect individual rights.

What may not be gainsaid, however, is that the Court has now returned to its historically conservative tendencies with a vengeance that can only be called reactionary. And if you put aside arguments over judicial philosophy and look at the practical results, it is worse than that.

In the last few days of its most recent term, the Court released a series of decisions that, whatever their purported rationales, made the world a more dangerous place: more dangerous for poor people of color, who can no longer effectively seek redress for certain forms of police misconduct; more dangerous for women, who in many states must now resort to backroom abortions and face imprisonment for doing so; and more dangerous for Americans generally, who can no longer hope to meaningfully curb the increase in gun violence now plaguing our nation and whose government will find it ever more difficult to alleviate the climate change that imperils our planet. It is hard to believe that Felix Frankfurter would have been comfortable with such results.

Some Perspective on the Renegade Supreme Court Majority

We know they’re corrupt, but are they so out of the ordinary? David Cole is a law professor and the legal director of the ACLU. These are excerpts from a longer article from the New York Review of Books:

Over the course of the Supreme Court’s 232-year history, 110 men and six women have served as justices. Just a small handful of them have been “originalists,” holding the view that the only appropriate way to interpret the Constitution is to ask how its provisions were specifically understood at the time they were adopted. But in 2020 that handful became, for the first time, a majority of the Court when Amy Coney Barrett was confirmed, joining fellow originalists Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. (Chief Justice John Roberts is sometimes an originalist and sometimes not.) During the 2020–2021 term—Barrett’s first—the Court proceeded cautiously, mostly seeking consensus across ideological lines through narrow decisions.

But this past term, which concluded on June 30, these five individuals abandoned caution and exerted their newfound authority like few justices ever have. The Court eliminated the right to abortion, struck down a century-old New York law that limited the public carrying of guns, required Maine to fund religious education and a Washington State public school to allow its football coach to pray publicly at the fifty-yard line after games, blocked President Biden’s Covid vaccine mandate for large businesses, and denied the Environmental Protection Agency the authority to require power plants to shift away from coal in order to slow global warming. Compromise, consensus, and the rule of law are out; the radical exercise of power is in.

In several of its most controversial decisions, including those on abortion, gun control, and prayer, the Court invoked originalism to overturn long-standing law and precedent. That approach, if applied consistently, would upend virtually all of constitutional law. Because so few justices throughout American history have been originalists, constitutional law as it stands today, especially with respect to its open-ended guarantees of liberty, equality, and due process, bears little resemblance to how it was originally understood. To revert to that understanding would be plainly unacceptable; it would mean, for example, reviving “separate but equal” [schools for blacks and whites] and depriving women of equal protection. For better or worse, even the most committed originalists don’t apply originalism consistently, so it’s unlikely that the Court will resurrect Plessy v. Ferguson, the 1896 decision upholding segregation. But this past term, the new majority aggressively applied originalism to disastrous effect, and only they know how far they will go.

The biggest case of the term, and thus far of the century, was Dobbs v. Jackson Women’s Health Organization, in which five justices, including all three of [the previous president’s] nominees—Gorsuch, Kavanaugh, and Barrett—voted to overrule Roe v. Wade and about twenty other Supreme Court cases that had followed and applied Roe over nearly half a century. Dobbs will almost certainly be included among the Court’s worst decisions in history. Never has the Court eliminated a constitutional right so central to the equality and autonomy of half the nation. And never has the Court overturned precedent on such a transparently thin basis….

The majority’s conclusion that Roe was “egregiously wrong” rested on its view that the only appropriate way to interpret the Constitution is by reference to its “original understanding.” But there is another way to read the Constitution. It’s sometimes called the “living Constitution” or “common-law constitutionalism,” and it is the method used by virtually every justice in the Court’s history other than the five in the Dobbs majority, the late Antonin Scalia, and sometimes Chief Justice Roberts. Under that approach, the Court starts with the text of the Constitution but recognizes that its broad, open-ended terms—such as “liberty,” “due process,” and “equal protection”—were designed to evolve over time, through the accretion of precedent, the articulation of principle and fundamental norms, and reasoning by analogy. Under that approach, Roe is not “egregiously wrong” but plainly correct.

In a series of decisions over the last century, the Court has interpreted “liberty” in the Fourteenth Amendment in this way, and not exclusively by reference to its original understanding or “history and tradition.” It has relied on the provision to bar stomach-pumping to search for drugs and forced sterilization, and to protect the rights to use contraception, to marry someone of a different race or the same sex, to choose how to educate one’s children, and to engage in consensual sexual relations with adults of one’s own sex, despite the fact that none of these rights is expressly provided in the Constitution. The right to choose whether to bear a child is of a piece with these decisions and is therefore protected for the same reason. Roe is “egregiously wrong,” then, only if the methodology used by virtually every justice to have ever served on the Court is egregiously wrong….

Overturning precedent requires more than a determination that the prior ruling is wrong, because otherwise the Constitution would change each time the makeup of the Court does. Justice Alito conceded that the Court must also ask whether people have relied on the prior ruling before overturning it. But he callously dismissed such concerns… This is stunningly obtuse….While the majority opinion in Dobbs declared that “the most striking feature of the dissent is the absence of any serious discussion of the States’ interest in protecting fetal life,” the dissent quoted the majority’s own language back at it: “‘The most striking feature of the [majority] is the absence of any serious discussion’ of how its ruling will affect women.”

In New York State Rifle & Pistol Association, Inc. v. Bruen, the Court similarly elevated adherence to a crabbed view of history over both standard constitutional methodology and present-day reality….By the increasingly common margin of 6–3, struck down a New York law dating from 1911 that required individuals to demonstrate that they had a need to carry a gun in public before they could be licensed to do so….

The Second Amendment did not even protect an individual right to own a gun until the Court’s District of Columbia v. Heller decision in 2008. Before then, the courts, the Justice Department, and historians had long viewed the Second Amendment as protecting only the rights of states to field a militia, as a check on federal tyranny. In Heller, after a long and carefully orchestrated campaign by the National Rifle Association, the Supreme Court for the first time announced that the Second Amendment protected an individual right to possess a firearm in one’s home for self-defense…..At the time, however, the Court reassured the public that the Second Amendment right was not absolute and was subject to reasonable regulations…..

In Bruen, however, the Court went much further. In a decision written by Justice Thomas, it announced that the only gun regulations that the Constitution permits are those that have a direct analogue in laws that existed in the eighteenth century, when the Second Amendment was adopted, or possibly the nineteenth century, when Congress adopted the Fourteenth Amendment….In the absence of a specific historical precedent, any restrictions on the right to bear arms are unconstitutional—no matter how serious the threat guns pose to public safety or how reasonable the regulation…..

The Court’s approach is contrary to common sense, constitutional precedent, and the very history it purports to rely upon. Most fundamentally, why should states in the twenty-first century be limited to what states did centuries earlier, particularly when conditions have radically changed?

… The particular historical approach Justice Thomas announced, in which the only laws that are valid are those that mirror eighteenth- and nineteenth-century laws, applies to no other constitutional right. …With respect to virtually all other rights, courts also ask whether the state has a strong enough interest to limit the right, and whether it has done so in a sufficiently narrow way. This “means-ends” scrutiny, pervasive in constitutional law, governs free speech, free exercise, and equal protection claims, among others, and expressly allows for the assessment of contemporary needs and conditions….

But it gets worse. Defenders of New York’s law cited boatloads of historical examples of laws restricting the public carrying of weapons, spanning nearly seven hundred years. They include the Statute of Northampton, first enacted in 1328, which made it a crime to carry arms in public without the king’s permission and which was copied by several American colonies. Limits on carrying weapons continued through the founding era, and before and after the enactment of the Fourteenth Amendment. It should hardly be surprising that governments have long restricted the carrying of weapons in public.

Justice Thomas, however, found ways to reject each and every historical example. As Justice Breyer pointed out in a devastating dissent, Thomas found some “too old,” others “too recent.” “Some were enacted for the wrong reasons,” others “arose in historically unique circumstances.” Thomas’s wide-ranging set of excuses for rejecting analogues only underscores the subjective character of the enterprise and belies any claim that the historical method of interpretation significantly restrains judicial discretion….

Judging, especially at the Supreme Court level, requires not just a theory for interpreting constitutional law. It requires statesmanship, humility, an open mind, and, perhaps most importantly, respect for the institution and the accumulated judgment of one’s predecessors. As the Dobbs dissent noted, Justices Kennedy, O’Connor, and Souter [all nominated by Republican presidents] understood that:

The American public … should never conclude that its constitutional protections hang by a thread—that a new majority, adhering to a new “doctrinal school,” could “by dint of numbers” alone expunge their rights. It is hard—no, it is impossible—to conclude that anything else has happened here.

Next term the Court takes up the constitutionality of affirmative action, racial discrimination in redistricting, a sweeping challenge to the Indian Child Welfare Act, a claim that “expressive” businesses have a right to discriminate against gay couples … and an unprecedented and dangerous claim that state courts cannot police their legislatures when they gerrymander congressional districts. Whether the Court will continue its headstrong approach to all that has gone before it is likely to depend on how we as citizens respond to its initial salvos. If Americans mobilize, demonstrate, and vote on issues like abortion, gun control, and climate change, the Court will at some point have to take heed. But if we sit back and allow it to take away our rights and safety without a fight, there’s no telling how far the five [or six] justices who now exercise majority control will go.

Unquote.

It’s an excellent article, but I disagree with the author’s contention that this Court “will at some point have to take heed” of what the majority of American voters want. Short of Congress doing something like adding Supreme Court justices or limiting the Court’s ability to declare laws unconstitutional, this renegade Republican majority has absolute power. They can rule however they want and can always make up reasons for doing so.

The Supreme Court Has Never Been a Level Playing Field

The Constitution deserves less respect. So does the Supreme Court. After reviewing the Court’s history as an impediment to progress, Ian Millhiser of Vox argues that “the judiciary is structurally biased in favor of conservatives:

The Court was the midwife of Jim Crow, the right hand of union busters, the dead hand of the Confederacy, and now is one of the chief architects of America’s democratic decline….

Decisions like Dobbs, which commandeer the bodies of millions of Americans — or decisions dismantling the Voting Rights Act — are entirely consistent with the Court’s history as defender of traditional hierarchies. [Justice Samuel] Alito is not an outlier in the Court’s history. He is quite representative of the justices who came before him.

In offering this critique of the Supreme Court, I will acknowledge that the Court’s history has not been an unbroken string of reactionary decisions dashing the hopes of liberalism. The Court’s marriage equality decision in Obergefell v. Hodges (2015), for example, was a real victory for liberals.

But the Court’s ability to spearhead progressive change that does not, like marriage equality, enjoy broad popular support is quite limited. The seminal work warning of the heavy constraints on the Court’s ability to effect such change is Gerald Rosenberg’s The Hollow Hope, which argues that “courts lack the tools to develop policies and implement decisions [in favor of] significant social reform,” at least when those reforms aren’t also supported by elected officials.

This constraint on the judiciary’s ability to effect progressive change was most apparent in the aftermath of perhaps the Court’s most celebrated decision: Brown v. Board of Education (1954).

Brown triggered “massive resistance” from white supremacists, especially in the Deep South. As Harvard legal historian Michael Klarman has documented, five years after Brown, only 40 of North Carolina’s 300,000 Black students attended an integrated school. Six years after Brown, only 42 of Nashville’s 12,000 Black students were integrated. A decade after Brown, only one in 85 African American students in the South attended an integrated school.

The courts simply lacked the institutional capacity to implement a school desegregation decision that Southern states were determined to resist. Among other things, when a school district refused to integrate, the only way to obtain a court order mandating desegregation was for a Black family to file a lawsuit against it. But terrorist groups like the Ku Klux Klan used the very real threat of violence to ensure few lawsuits were filed.

No one dared to file such a lawsuit seeking to integrate a Mississippi grade school, for example, until 1963.

Much of the South did not really begin to integrate until Congress passed the Civil Rights Act of 1964, which allowed the Justice Department to sue segregated schools, and which allowed federal officials to withhold funding from schools that refused to integrate. Within two years after this act became law, the number of Southern Black students attending integrated schools increased fivefold. By 1973, 90 percent of these students were desegregated.

Rosenberg’s most depressing conclusion is that, while liberal judges are severely constrained in their ability to effect progressive change, reactionary judges have tremendous ability to hold back such change. “Studies of the role of the courts in the late nineteenth and early twentieth centuries,” Rosenberg writes, “ show that courts can effectively block significant social reform.”

And, while such reactionary decisions may eventually fall if there is a sustained political effort to overrule them, this process can take a very long time. Dagenhart [a decision that overruled Congress and allowed products made by child labor to cross statelines] was decided in 1918. The Court did not overrule it, and thus permit Congress to ban child labor, until 1941.

There are several structural reasons courts are a stronger ally for conservative movements than they are for progressive ones. For starters, in most constitutional cases courts only have the power to strike down a law — that is, to destroy an edifice that the legislature has built. The Supreme Court could repeal Obamacare, but it couldn’t have created the Affordable Care Act’s complex array of government-run marketplaces, subsidies, and mandates.

Litigation, in other words, is a far more potent tool in the hands of an anti-governmental movement than it is in the hands of one seeking to build a more robust regulatory and welfare state. It’s hard to cure poverty when your only tool is a bomb.

So, to summarize my argument, the judiciary, for reasons laid out by Rosenberg and others, structurally favors conservatives. People who want to dismantle government programs can accomplish far more, when they control the courts, than people who want to build up those programs. And, as the Court’s history shows, when conservatives do control the Court, they use their power to devastating effect.

This alone is a reason for liberals, small-d democrats, large-D Democrats, and marginalized groups more broadly, to take a more critical eye to the courts. And the judiciary’s structural conservatism is augmented by the fact that, in the United States, institutions like the Electoral College and Senate malapportionment give Republicans a huge leg up in the battle for control of the judiciary.

Simply put, the Supreme Court has not served the American people well. It’s time to start treating it that way.

Unquote.

A similar point can be made regarding the US Senate. Senators who want to leave everything as it is can use the filibuster to kill legislation much more easily than Senators can use it to pass legislation.