Members-Only Article
If you needed to know anything more about Amy Coney Barrett – I didn’t, but if you did – she made her first act last night appearing at a splashy campaign event for President Trump. Once the Senate voted to confirm her on a party line vote, she had a lifetime appointment and literally no need for anything from President Trump. Indeed, she would quite likely have marginally improved the odds that the corrupt conservative Court majority would remain in place by declining such an appearance.
She did it anyway and that was a choice.
Meanwhile, Justice Kavanaugh, himself a former Republican political operative rinsed and rebranded as a High Court Justice, issued another ruling to restrict voting access in the current election. Critically and ominously he added what amounted to a threat to use the Court to block vote counting after election day or mail-in votes altogether. Kavanaugh laundered Trump’s tweet threats into SCOTUS-ese. But the message was the same. He aped the Trump’s line about “chaos” and uncertainty if there’s no definitive result on election night even though the election night result is purely a function of election calls by media organizations. No states publish or certify election results on election night. It always takes days and usually weeks to do.
We all understand that we’re used to knowing who won on election night and we’d all like this to be done. But Kavanaugh’s gambit highlights the fact that knowing the results on election night or halting the counting of votes on election night is purely a figment of press schedules and cannot have any legal or constitutional standing. He is simply part of the greater Republican corruption and its increasingly open program to use the power and legitimacy of the Supreme Court to engineer Republican election victories even when its candidates can’t muster the most votes. It is a corrupt program; it is a corrupt Court.
There are people of good will who believe that saying such things out loud undermines the legitimacy of the Court. This is quaint and sad. Because the authors of the corruption rely on this fealty to a broken legitimacy to advance their corruption, to sustain a respect for norms, precedent and rule-following as they run roughshod over all of them. There are many critical policy priorities the current Court threatens: reproductive rights, climate action, health care provision, voting rights. But it is wrong to see the threat and challenge through any of these individual prisms. As we have discussed before, the larger, truer issue is the Republican retreat from majoritarianism, its increasing focus on rigging the constitutional system for sustained minority rule as Republicans see their ability to win majority elections come under greater and greater threat.
This is what voter suppression is about. This is what redistricting on steroids is about. This is why in states like Wisconsin Republicans now routinely retain state legislative super-majorities while getting fewer votes than their Democratic opponents. It’s not about any one of those critical policy priorities. It is about making the federal judiciary into a self-sustaining redoubt of Republican power – an entrenched veto power against Democratic election victories and policy making for decades into the future.
None of the GOP’s current policy priorities or rearchitecting of the constitutional order make sense without the assumption that winning majority elections is becoming increasingly hard and will only become harder for Republicans over time.
If Democrats win the presidency and a senate majority next week they will have a window of opportunity not just to legislate Democratic policy priorities but far more importantly to reopen the clogged channels of democratic process and action. That requires expanding the Court with at least four new Justices as well as expanding the federal judiciary as a whole – quite apart from composition the federal judiciary simply has too few judges at present.. It requires ending the Senate filibuster. It means adding Washington DC and Puerto Rico as new states of the Union. It means a lot else too. You can mix and match specific approaches. But nothing is possible without unclogging the arteries of democracy itself. Without an expanded Court we will see years and decades into the future in which the Court manufactures increasingly ornate and absurd ‘originalist’ reasonings that find quite disinterestedly that basically all Democratic policy initiatives are barred by the federal Constitution.
Republicans have a motto. Elections have consequences – when Republicans win them. Power for me, norms for thee. With power comes responsibility. Our democratic order is endangered not only by Trumpism but by the deeper Republican corruption which both created it and sustained it in power. The danger we face is not that we will lose some incremental access to health care or see the pace of climate action further slowed. It is that we will see the right of electoral majorities to make these decisions at all come to an end. If Democrats were to get the power to begin the process of reseting and entrenching the democratic order and fail to do so it would be a grand failure and indeed a betrayal.
