The Dangerous Extremists We’re Facing, Part 2

Article 4, Section 4 of the Constitution says:

The United States shall guarantee to every State in this Union a Republican Form of Government . . .

They weren’t referring to a government run by the Republican Party (there weren’t any political parties in America in 1789). They meant that every state should be a republic, not a monarchy. We, the people, along with our elected representatives, should hold supreme power.

The 14th Amendment, Section 1 says that laws should treat us all equally:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; . . . nor deny to any person within its jurisdiction the equal protection of the laws.

Taking those two requirements together, it seems to say that people who live in the same state should be treated equally when it comes to electing their representatives. A state’s laws should not discriminate between voters.

However, Article 1, Section 4 of the Constitution gives state legislatures power to set the borders of congressional districts (and, by implication, of state legislative districts as well). This allows state legislatures to decide which voters live in a particular district, although Congress can overrule how those decisions are made:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . .

This creates a situation the authors of the Constitution probably didn’t foresee. A state’s legislators are responsible for determining the boundaries of their own legislative districts, meaning they decide which voters will be responsible for electing them. They are also responsible for setting the boundaries of congressional districts, the areas in the state that elect particular members of the House of Representatives (senators are elected by the whole state).

Gerrymandering has been the result. Legislators design legislative and congressional districts to give themselves and their parties as much power as possible. Voters who tend to vote for the other party are corralled into certain districts, meaning that those districts are guaranteed to elect members of the other party. But it also means there will be relatively few of those lopsided districts.

The upshot is that most districts in a gerrymandered state will have voters who reliably elect members of the party that controls the state legislature. Suppose, for example, a district in Houston, Texas, might always give tremendous victories (80% of the vote) to a Democrat, while two districts near Houston always give smaller, but still reliable, 60% victories to Republicans. This means that even if Democratic candidates get 50% of the total vote in those three districts, Republicans will almost always win two of them and the Democrats will only win one. In a nutshell, allowing legislators to design legislative districts allows them to pick their voters, when the citizens of a republic are supposed to pick their legislators.

That’s obviously not fair. The voters in those three districts in Texas aren’t being treated equally. Practically speaking, the Democrats who live in those districts will never be able to elect more than one Democrat to the state legislature or the House of Representatives, while the equal number of Republicans who live in the same districts will be able to elect two Republicans.

But wait! Congress could change the rules (such as where the district boundaries are) so that the three elections would be competitive. Sometimes one party would win more seats; sometimes the other party would. Except that the very same legislators are responsible for setting the boundaries for Congressional districts. The result is that, in the example above, gerrymandering would allow the state legislature to arrange the boundaries so that more Republicans are guaranteed to win elections, even if the region is equally divided between Republicans and Democrats. Why would a gerrymandered Congress use its authority to undo the gerrymandering that helped get many of its members elected? And even if the House of Representatives agreed to do something about it, the Senate probably wouldn’t, since the Senate is the bastion of minority rule (given the existence of the Senate filibuster and the fact that the Constitution gives two senators to every state, even the smallest or most rural that frequently vote Republican).

But we have federal courts to intervene! The Supreme Court is ultimately responsible for making sure the nation’s laws at both the state and federal level are constitutional. Given the republican (small-r) government guarantee in Article 1, and the equal protection clause in the 14th Amendment, the courts could fix the gerrymandering problem.

Well, the Supreme Court could, but that’s not what the Republican majority on the Court decided two years ago. From NPR:

In a 5-4 decision along . . . ideological lines, the Supreme Court ruled that partisan redistricting is a political question — not reviewable by federal courts — and that those courts can’t judge if extreme gerrymandering violates the Constitution.

The ruling puts the onus on the legislative branch, and on individual states, to police redistricting efforts.

“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” Chief Justice Roberts wrote for the conservative [i.e. reactionary] majority. 

Roberts noted that excessive partisanship in the drawing of districts does lead to results that “reasonably seem unjust,” but he said that does not mean it is the court’s responsibility to find a solution.

To which Elena Kagan, appointed to the Court by a Democrat, responded:

For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.

And not just any constitutional violation. The partisan gerrymanders in these cases [before the Court] deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.

These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.

And checking them is not beyond the courts. The majority’s abdication comes just when courts across the country, including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering
claims. . . . They limit courts to correcting only egregious gerrymanders, so judges do not become omnipresent players in the political process.

But yes, the standards used here do allow—as well they should—judicial intervention in the worst-of-the-worst cases of democratic subversion,
causing blatant constitutional harms. In other words, they allow courts to undo partisan gerrymanders of the kind we face today from North Carolina and Maryland. In giving such gerrymanders a pass from judicial review, the
majority goes tragically wrong.

In sum, state legislators are allowed to rig elections, the Supreme Court says it’s up to Congress to stop them and Congress won’t, not unless enough Democrats are elected to state legislatures and Congress, but that’s unlikely because Republican state legislatures have rigged the game.  

Jamelle Bouie of The New York Times summarizes the current situation:

Not content to simply count on the traditional midterm swing against the president’s party, Republicans are set to gerrymander their way to a House majority next year.

Last week, North Carolina’s Republican-controlled statehouse passed a new map that would, in an evenly divided electorate, give it 10 of the state’s 14 congressional seats. To overcome the gerrymander and win a bare majority of seats, according to the Princeton Gerrymandering Project, Democrats would have to win an unattainably large supermajority of votes.

A proposed Republican gerrymander in Ohio would leave Democrats with two seats out of 15 — or around 13 percent of the total — in a state that went 53-45 for T____ in 2020.

It is true that Democrats have pursued their own aggressive gerrymanders in Maryland and Illinois, but it is also true that the Democratic Party is committed, through its voting rights bills, to ending partisan gerrymandering altogether.

The larger context of the Republican Party’s attempt to gerrymander itself into a House majority is its successful effort to gerrymander itself into long-term control of state legislatures across the country. In Michigan, Wisconsin, Pennsylvania and other states, Republicans have built legislative majorities sturdy enough to withstand all but the most crushing “blue wave.”

And in the age of D___ T___, they are using their majorities to seize control of election administration in states all over the country, on the basis of an outlandish but still influential claim that the Constitution gives sovereign power over elections to state legislatures [Note: which it doesn’t, according to Article 1, Section 4 of the Constitution].

These are the dangerous extremists we’re facing.

Not 1930s Germany, But 1820s Britain

Prof. Corey Robin, author of The Reactionary Mind, doesn’t see our former president as a political strongman, the harbinger of an American brand of fascism. He sees the Republican Party using the Constitution to hold the line against the majority’s desire for progress, and therefore truly conservative. From The New Yorker:

. . . Fascism called the young to the cause of novelty and creation. Today’s right is nothing like that. It is an artifact of the world’s most ancient and extant legal order, holding on to the Constitution, and the institutions it authorizes, for dear life. . . .

. . . Seeking to counter their waning position, the Republican Party and the conservative movement have come to depend upon three pillars of counter-majoritarian rule: the Senate, the Electoral College, and the Supreme Court. These institutions are not authoritarian or fascist—indeed, they are eminently constitutional—but they are antidemocratic. They are also mainstays of the right. In a remarkable statement, now forgotten, issued three days before January 6th, seven conservative members of the House warned their colleagues that [Republican] presidential candidates have

depended on the electoral college for nearly all presidential victories in the last generation. If we perpetuate the notion that Congress may disregard certified electoral votes—based solely on its own assessment that one or more states mishandled the presidential election—we will be delegitimizing the very system that led [our party] to victory in 2016, and that could provide the only path to victory in 2024.

The current moment is less reminiscent of the last days of Weimar than of Britain in the years before the Reform Act of 1832. With a scheme of representation dating back to the twelfth century, Parliament was the playground of grandees from rural and sparsely populated regions of the South. Growing cities in the Midlands and the North had no representation at all.

Standing atop this “aristocracy of mere locality,” in the words of the historian and Whig politician Thomas Macaulay, were the Tories. For six decades, virtually without interruption, they leveraged this Senate-like system of rotten boroughs to keep the Whigs out of power, enabling an increasingly isolated group of aristocrats and gentry to maintain their privileges. While “the natural growth of society went on” among the middle classes and in the cities, Macaulay said, “the artificial polity continued unchanged.”

Other features of this system will sound familiar. Polling places were few and far between; one of the leading items on the reform agenda was to increase their number. Electoral laws were so byzantine, and generated results so murky, that an army of well-paid lawyers was on the payroll for years, sorting out the returns and arguing over their validity. The “artificial polity” kept politics frozen in time, discouraging both parties from taking up vital economic questions of the day, and preventing new social forces and the partisan realignment that was eventually to come . . .

The “And” Defense Doesn’t Work

I’m trying to say less about our former president and his minions — including the entire Republican Party — now that they have a lesser role in our lives, but a correction to the previous post is in order. Therein I considered the argument that a president cannot be impeached after leaving office because of the way the Constitution is worded. Two law professors explain why this is clearly wrong (I apologize for not noticing what they point out):

. . . Some have argued that the constitutional clause providing that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States” implies that any consequence of conviction must consist of both removal and disqualification from future office — which could happen only in the case of sitting officers.

That is not what the clause says. It says the judgment may not “extend further” than these two sanctions. It does not say that both sanctions must be imposed in every case. Indeed, most convictions over the years involved only one, removal from office.

Clearly, if punishment cannot extend beyond X and Y, it means that X and Y are both allowed, but nothing else is. The Senate can’t add punishment Z to the mix, but they can apply either X or Y or the two together.

In this particular president’s case, it means that, although it’s too late to remove him from office, he can be barred from a future government position. Unfortunately, however, he can’t be forced to shave his head and wear a dunce cap.

Despite the above, Republican senators will still argue that he’s beyond punishment. They fear the former president’s radical supporters. But it’s good to understand why they’re wrong about the Constitution.

(Note: I still say we need to add “andor” to English, so we can easily say “this andor that”, while leaving “and” to mean “both” and “or” to mean “either this or that, but not both”.)

Making the Supreme Court More (Small “d”) Democratic

The fundamental objection to the Supreme Court’s powers . . . is that no one concerned to establish a democratic state would bestow on nine judges, appointed for life at the whim of the pre­sident, powers to determine society’s governing norms.

That’s from an Oxford fellow’s London Review of Books article about America’s Supreme Court, which now includes six Republicans (five of whom are Catholics) and three Democrats (one of whom is). The article continues:

Some progressives have begun to argue that the court’s problems can be fixed only if its powers are reduced. One possibility would be to introduce term limits for judges. This, though, wouldn’t limit their powers.

But the Constitution says federal judges “shall hold their offices during good behaviour”. That seems to mean term limits would require a constitutional amendment, which would be unlikely to pass when the Court is so unbalanced. Republicans wouldn’t agree to give up their big advantage.

Another suggestion is to change the voting rules on the court. Continental legal systems often require unanimity among the judges in all decisions. In the US, if the justices were unable to reach unanimous agreement, the lower court’s decision would be upheld. This already happens when an equal number of justices are in favour of and opposed to a ruling: the court can divide equally when . . . there are only eight members on the court, or when a justice recuses him or herself. A unanimity rule would not deprive the court of all its powers: between 1946 and 2009, 41 per cent of decisions were unanimous.

There is nothing in the Constitution that says how many votes are required for the Supreme Court to make a decision, so requiring a unanimous vote would merely require a new law, not a constitutional amendment. A Democratic president and Democratic Congress could easily make that happen, assuming a Democratic Senate got rid of the filibuster.

But it would mean that a single ideologue could exercise an outsized effect on individual decisions.

Some scholars propose a super-majority requirement, permitting one or two dissenters. That deprives the lone ideologue of ransom power, but it is also a conservative measure, entrenching the court’s existing decisions; the more controversial may never be overturned.

The proposal often mentioned is to enlarge the Court (so-called “court packing”). Congress and the President could add three Democrats, for example, creating a 12-member Court split evenly between the parties.

. . . When Franklin Roosevelt sought to pass progressive legislation during the Great Depression, the Supreme Court stymied his efforts by striking down key parts of the New Deal. In response, he resolved to appoint as many as six new justices. Roosevelt, for all his skills, was unable to get the measure through the Senate (though the court was chastened by his efforts). Pete Buttigieg revived the idea in his run for president, proposing an expansion from nine to 15 judges. There is no principled reason to settle on nine as the appropriate number of justices; the court initially had six, once had ten, and other Supreme Courts around the world often have more.

The author of the Guardian article thinks adding justices would be inadequate:

But ‘packing’ the court, even if it were politically feasible, still doesn’t address the problem of how to limit its powers. That said, the political confrontation it would generate might cause the justices to reconsider their attitudes to those powers. That would be no bad thing.

Chief Justice Roberts is apparently concerned that the Court’s right-wing activism may sometimes go too far. But depending on him or other justices to refrain from using all their power to carry out the Republican agenda is wishful thinking. Rather than waiting for the Republican majority to restrain itself, Congress should limit the Court’s powers. A University of Chicago law professor explained how last month in The Washington Post:

A new Democratic Congress could, for example, impose by ordinary statute a limit on the Supreme Court’s authority to declare federal legislation unconstitutional, permitting it to do so only by supermajority (say, 7-2) rather than the usual 5-4. In so doing, Congress would be using the same power it does to dictate how many justices constitute a quorum. This reform would implement, via voting rule, the sort of “clear error” approach to judicial review imagined by Harvard professor James Bradley Thayer in the late 1800s. Such a rule would permit a judicial veto in cases of uncontroversial constitutional violation (for example, an effort to reintroduce de jure segregation of schools or criminalizing the speech of political opponents) but otherwise require the court to stay its hand.

Alternatively, Congress and the president might (again by ordinary statute) “strip” the court of jurisdiction over constitutional challenges to specific legislation — the Green New Deal, for example, or HR1, the sweeping set of reforms first approved by the Democratic House in 2019 that includes establishing automatic voter registration, making Election Day a national holiday and ending partisan gerrymandering. (It could also strip its jurisdiction over whole areas of law, such as climate legislation). Here, Congress would be making use of its Article III power to decide what kinds of cases the Supreme Court may hear on appeal — the court has constitutionally mandated jurisdiction only over disputes between states and the like — as well as its authority to decide whether lower federal courts exist at all, and so what cases they are permitted to hear.

. . . The exact scope of Congress’s ability to strip jurisdiction remains controversial, and a recalcitrant court might resist. This is a situation in which additional sympathetic justices recently added to the court might be helpful; court packing, in other words, might pave the way for additional reforms. Whatever stance the court takes, the limits Congress may impose is a question that careful attention to the Constitution is unlikely to answer; rather, as with most of these disputes, the resolution would ultimately be political, as opposed to legal, with the political and judicial branches left to hash out a new status quo. As former dean of Stanford Law School Larry Kramer has observed: “The Constitution leaves room for countless political responses to an overreaching court” — including judicial impeachment, slashing the court’s budget, giving the justices onerous responsibilities or simply ignoring the court, as did Lincoln, after the Dred Scott case.

Conservatives made similar efforts at limiting the court’s authority in the 1970s and 1980s (backed by legal arguments from a young [John] Roberts, working as an attorney at the Department of Justice) — repeatedly introducing legislation to limit federal courts’ ability to adjudicate contentious cultural issues such as abortion and school prayer — and have made similar efforts since. Those efforts failed, in part because of a lack of support in the Senate, but one can imagine that a Democratic-controlled Senate might be exceptionally motivated to protect its potential legislative accomplishments from a hostile judiciary.

Given Republican rhetoric about unduly powerful courts, there’s a chance that at least some conservatives may embrace the cause of judicial disarmament (especially if liberal court-packing is the alternative). For both parties, of course, going down such a path would increase the stakes for who controls the political branches. Both sides would have to ratchet down the expectation that the Supreme Court would annul popular laws that they find distasteful — whether that means (on the right) a statute phasing out fossil fuel production or (on the left) a federal ban on affirmative action in higher education. In a democracy, however, that is exactly how things should be.


Seven days.