The Weekly Sift

A minority-elected President and a minority-elected Senate “majority” might cement an unpopular Supreme Court majority for decades to come — and such a Court might bless the tricks that will allow the further expansion of minority rule.

The death of liberal Supreme Court Justice Ruth Bader Ginsburg, and the likelihood that President Trump and the Republican Senate will replace her with an extreme conservative, creating a 6-3 conservative majority on the Court, raises a number of immediate questions: Can Democrats slow the process down somehow, so that Ginsburg will be replaced by a new president and a new Senate in January? Can Republicans be shamed by the hypocrisy of confirming Trump’s nominee so close to the election (after denying President Obama a Supreme Court appointment much further from the election) that they will forego a confirmation vote? If not, as is almost certain, can four Republican senators be peeled off to prevent Trump’s nominee from being confirmed? And so on.

Speculation. This kind of speculation is addictive, but of limited use. News channels love it, because the production cost of speculation is near zero — just bring your usual talking heads together and turn them loose. Viewers easily get obsessed with it, because speculation appeals to both our hopes and our fears. (Maybe something awful will happen. Or maybe we’ll be saved.) Pundits get to demonstrate their superior savvy by crafting complex House-of-Cards-style scenarios based on loopholes in the rules that lesser pundits haven’t noticed.

And in the end, what does it matter whether or not we divine the future? The useful actions we might take — expressing our desires both publicly and privately, putting pressure on our elected representatives, giving time or money to campaigns, or convincing our neighbors to share our opinions — don’t depend on knowing the future. We could just do them without knowing how they’ll come out.

Living with uncertainty is uncomfortable, but it is honest, because we don’t actually know what’s going to happen. We almost never need to know. We would all be more effective forces for justice and democracy if we spent less time speculating about events beyond our control and more time planning our actions.

Bearing in mind the pointlessness of being an armchair tactician, I want to back up and look at the larger picture: Why is the current situation a problem? Supreme Court justices, like all the leading voices in our Republic, are supposed to come and go. The Constitution defines a process by which our elected representatives replace them.

That process has gone wrong. In the long term, that’s the real problem.

Recent trends have emphasized the anti-democratic nature of our constitutional system, and the worst aspects of those trends have coalesced around the Supreme Court, creating a Court that is far more conservative than the American people. As that conservative Court increasingly excuses minority-rule tactics of gerrymandering and voter suppression, a vicious cycle has developed that threatens the legitimacy of both the Court and the government as a whole.

Democracy and the Founders. When the Constitution was written, large-scale democracy was still an untried notion. England, for example, had a Parliament, but it shared power with the King, and its electorate was still fairly small. (Universal suffrage even for men wasn’t achieved until 1918.) The Founders themselves were of two minds: The sovereignty of the People was good, but “mob rule” was bad.

The Constitution was an attempt to thread that needle. All power did eventually come from the People (minus women and non-white people), and if the (white male) People held an opinion consistently over time, they would eventually get their way. But in practice a number of institutional dams were built to control the floods of public opinion:

• The President was chosen by an electoral college, and not by popular vote. Popular vote was not even tabulated until John Quincy Adams’ election in 1824 — and he lost that popular vote by a considerable margin to Andrew Jackson.
• Senators were not only allocated equally to all states regardless of size, but were chosen by the state legislatures rather than direct election. Popular election of senators was established by the 17th Amendment, which wasn’t ratified until 1913.
• Supreme Court justices were appointed for life, and became completely insulated from the electorate once they were seated. They were nominated by presidents and approved by the Senate, and so were already fairly distant from the people.

In short, not only could you not vote on Supreme Court justices, you couldn’t even vote directly for anybody involved in choosing Supreme Court justices.

The era when it didn’t matter. Over time, the entire Western world got more comfortable with democracy. Suffrage gradually expanded, as religious tests and property tests were eliminated, and finally women and racial minorities were allowed to vote. Monarchies were either overthrown or turned into showpieces. Anti-democratic institutions like the House of Lords gradually lost their power.

In the US, voters got the right to elect senators, but the rest of the anti-democratic structure remained intact. It wasn’t eliminated largely because it didn’t matter: Presidential candidates who won the popular vote won the Electoral College as well, and parties that won the House typically won the Senate also.

Oversimplifying just a bit, the anti-democratic features of our system didn’t matter because the major conflicts were regional: the North against the South, or the East against the West. To the extent that they weren’t regional, the same sorts of issues played out in large and small states alike. As recently as the 1970s, South Dakota and Idaho produced liberal icons like George McGovern and Frank Church, while New York could elect a conservative like James Buckley.

A final factor: Until the 90s, California was a swing state. The same factors that turned an election in California were likely playing out all over the country.

Why it matters now. The big divide in the country today is urban vs. rural. Even in a red state like Texas, which Trump won by 9% in 2016, the big cities — Houston, Dallas, San Antonio — voted Democratic. Other red-state cities, like Louisville, Nashville, and Atlanta, went Democratic as well.

Largely this split reflects another split: white vs. non-white. Rural populations are overwhelmingly white, urban populations overwhelmingly non-white.

Small states are small precisely because they don’t have big cities. (Rhode Island, where the Providence metro area has more people than the state itself, is the exception.) So a system that favors small states favors rural interests. In the current environment, small-state privilege means white privilege and Republican advantage.

Meanwhile, the biggest state, California, has shifted far to the left of the rest of the country. Hillary Clinton won California in 2016 by 4.3 million votes. In the rest of the US, Trump had a 1.5 million vote advantage.

The result is that the Electoral College has overruled the voters twice in the last five elections, after not causing any problems since 1876. Both times it gave us Republican presidents who led the country into major disasters: George W. Bush (the Iraq War and the Great Recession) and Donald Trump (Covid-19).

The Senate has become increasingly difficult for Democrats to win, even when the majority of voters back them. Nate Silver has done the numbers on this.

At FiveThirtyEight, our favorite way to distinguish between urban and rural areas is based on using census tracts to estimate how many people live within a 5-mile radius of you. Based on this, we can break every person in the country down into four buckets:

• Rural: Less than 25,000 people live within a 5-mile radius of you;
• Exurban or small town: Between 25,000 and 100,000 people within a 5-mile radius;
• Suburban or small city: Between 100,000 and 250,000 people within a 5-mile radius;
• Urban core or large city: More than 250,000 people within a 5-mile radius.

As it happens, the overall U.S. population (including Washington D.C. and Puerto Rico) is split almost exactly evenly between these buckets: 25 percent rural, 23 percent exurban/small town, 27 percent suburban/small city, and 25 percent urban core/large city.

But when Silver constructs, the “average state” — weighing small states the same as big states — he gets very different numbers: 35% rural, 14% urban core.

In the U.S. as a whole, 60 percent of the population is non-Hispanic white and 40 percent of the population is nonwhite. But in the average state, 68 percent of people are white and 32 percent are nonwhite.

Another way to get at the same issue is to look at how many Americans the current Republican Senate majority actually represents. (I did this same calculation on my own before realizing that Silver had already done it.)

[D]espite their current 47-53 deficit in the Senate, Democratic senators actually represent slightly more people than Republicans. If you divide the U.S. population by which party represents it in the Senate — splitting credit 50-50 in the case of states such as Ohio that have one senator from each party — you wind up with 167 million Americans represented by Democratic senators and 160 million by Republicans.

In other words, a truly representative Senate would have a 51-49 Democratic majority, not a 53-47 Republican majority. After looking at various other sorts of data, he concludes:

the Senate is effectively 6 to 7 percentage points redder than the country as a whole, which means that Democrats are likely to win it only in the event of a near-landslide in their favor nationally.

What this means for the Supreme Court. Democrats have won the presidential popular vote in six of the last seven elections, but have only gotten to take office four times. This year, Trump’s hopes for re-election hinge on repeating his 2016 path: squeaking out an Electoral College majority from a voting minority. Silver estimates that Biden has to win the popular vote by 3-4% to be confident of taking office.

Similarly, to win the Senate, Democrats will have to win at least two seats in traditionally red states like Arizona, North Carolina, Iowa, Georgia, or Montana.

In other words, the Constitutional mechanisms that were supposed to insulate the Court from mercurial swings in public opinion now serve to insulate them from the People’s sovereignty entirely. If the People split 50/50, the Court will be conservative.

The current travesty. A minority-elected President and a minority-elected Senate “majority” are now in position to appoint their third Supreme Court justice, and establish a 6-3 conservative tilt. The current conservative justices are Clarence Thomas (age 72), Samuel Alito (70), John Roberts (65), Brett Kavanaugh (55), and Neil Gorsuch (53). Add another young justice, like Amy Coney Barrett (48), and it is not hard to imagine another 15 years going by before a liberal or even moderate Court majority is possible — no matter what the voters want.

Worse, the Court has become part of a vicious cycle: Because of its partisan Republican leanings, the Court is already unwilling to defend voting rights. Chief Justice Roberts eviscerated the Voting Rights Act in 2013, and the Court has given a green light to partisan gerrymandering. We already see the result of this at the state level: In states like Wisconsin, Michigan, Pennsylvania, and North Carolina, control of the legislature is out of the reach of Democratic voters, even when they form a clear majority. Republicans regularly win 13 of Pennsylvania’s 18 seats in the House of Representatives, despite getting fewer total votes.

The United States caught in a downward spiral: Republicans empowered by a rigged system rig the system further.

Extreme action is justified. If Joe Biden wins the presidency and Democrats take the Senate, they should take action to reverse the structural rigging. Republicans and their captive media will paint these actions as extreme, but they are both justified and necessary:

• Eliminate the Senate filibuster. With luck Democrats will have 51 votes. If it takes 60 to get anything done, nothing will get done.
• Make states out of the District of Columbia and Puerto Rico. In addition to just being the right thing to do — taxation without representation is tyranny — this would help reverse the conservative rigging of the Senate and the Electoral College.
• Pass voting rights laws. Gerrymandering and voter suppression can be outlawed by statute, even if the Court believes they are constitutional.
• Add seats to the Supreme Court. The size of the Supreme Court is not in the Constitution and does not take a constitutional amendment to change. This will open a huge can of worms, but not doing it is the worse alternative.