SCOTUS Shivs Democracy

Liberals, the high court is no longer your friend.

Image result for rucho v common cause

Editor’s note

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Elizabeth Warren was absolutely right. 

During the first of two Democratic debates last night, Warren said that liberals rely too much on the US Supreme Court to protect achievements and advance priorities. Liberals depended on Roe to shield reproductive rights, she said, from a decades-long conspiracy to wear down that ruling. The time has come to codify Roe into law. 

It's not enough for us to expect the courts to protect us. Forty-seven years ago, Roe v. Wade was decided, and we've all looked to the courts all that time, as state after state has undermined Roe, has put in exceptions, has come right up to the edge of taking away protections. We now have an America where most people support Roe v. Wade. We need to make that a federal law.

As I said, absolutely right.

But I want to extrapolate a larger theme, which has everything to do with today’s ruling by the court that takes a shiv to democracy. That theme is something I’ve repeated over and over here at the Editorial Board, and that theme is this: The high court is no longer your friend. It ceased being your friend nearly two decades ago. It was just hard to see until lately. It’s time to take matters into our own hands.

The US Supreme Court, for most of its history, has stood in the way of justice. It has sided with rich against poor, white against black, men against women, you name it. It has sided pretty much with anyone with power against anyone with none. The court’s history of upholding justice is so bad Ian Millhiser titled his 2016 history Injustices.


These rulings are aiding the Republican Party in its goal of entrenching minority rule.


There was a brief period when this was not the case—when justices “incorporated” the Bill of Rights. For most of our history, the Bill of Rights did not apply to the states, meaning that the states could do whatever the hell they wanted to their residents. Incorporation resulted in some of the court’s landmark cases, such as Brown v. the Board of Education, which flummoxed four centuries of “common-sense thinking” about race, and Roe, which was decided on right-to-privacy grounds. Through incorporation, the court created a constitutional order most of us take for granted.

I’ll leave it to Millhiser and other legal historians to determine when things started to change, but for my money, the change was entirely obvious by 2000. That’s, of course, when the Supreme Court poked its nose where it did not belong—in the deliberation by the American people in choosing a new president. That’s when, as legal historian Jack Balkin has written, the high court took “control of another branch of government that would, in turn, help keep their constitutional revolution going.” He added:

It is one thing to entrench one’s constitutional principles through a series of precedents. It is quite another to entrench one’s ideological allies by directing the outcome of a presidential election.

Since 2000, we have seen ruling after ruling seeking to roll back a constitutional order most of us have come to take for granted. These rulings are aiding the Republican Party in its goal of entrenching minority rule. This is far from an overstatement.

Citizens United permits buying politicians. Shelby disenfranchises voters. Janus disempowers unions. And now we have Rucho, today’s ruling that permits Republican majorities to gerrymander their enemies out of existence. As Ian Millhiser put it: Rucho “is a catastrophic loss for democracy. It entrenches the ability of state lawmakers to lock their party into power through creative map-making.”

Over time, there will be no such thing as competitive districts in states controlled by Republicans. Over time, saying “may the best candidate win” will sound utterly ridiculous, because it won’t matter how good candidates are, and it won’t matter how many people vote. Majority will won’t matter. The results will be preordained.

Think about it. At some point in this century, women and minorities are going to be the majority. Instead of figuring out ways to appeal to voters, instead of engaging in democracy, the GOP is changing the law so it doesn’t have to bother. You say women don’t like the Republican Party? So what? We’ve got justices on our side!

Democrats don’t have justices, but they still haven’t realized that the constitutional order they take for granted is changing rapidly. Elizabeth Warren was absolutely right. Democrats need to codify Roe into federal law. But they need to do more than that.

—John Stoehr