The Illegitimacy of a Conservative Supreme Court

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.
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Comments

  • Anthony Vinson  On September 21, 2020 at 10:59 am

    Outstanding analysis. Couldn’t agree more. Sharing and promoting.

  • Barb Mantegani  On September 21, 2020 at 11:13 am

    Regarding your statement that a law can be passed outlawing gerrymandering even if the Supreme Court believes that such behavior is constitutional, that is actually not the case. Congress certainly CAN pass (and DID pass with the Voting Rights Act) laws that require states to do and not do certain things, but the Supreme Court most certainly is NOT required to uphold a law that prohibits that which the Court believes to be a constitutionally protected act. In fact, if the Court can come up with some crappy rationale to support the Constitutionality of gerrymandering it would be able to strike down all laws that seek to prohibit it. Remember, this is the same institution that gave us Plessy v. Ferguson, and that lasted for almost 60 years.

    • Anonymous  On September 22, 2020 at 2:01 am

      Then we pack the court until it delivers us the result we want

    • weeklysift  On September 24, 2020 at 6:11 am

      There’s a big stretch between constitutionally permitted and constitutionally protected. The Court could find that a state’s right to gerrymander is constitutionally protected against action by Congress, but I can’t see Roberts, Gorsuch, and Kavanaugh going that far.

  • Jill Drury  On September 21, 2020 at 11:13 am

    This is the blueprint that we need to start addressing systemic inequities. I can’t wait for us to start implementing it. Thanks for your clear and cogent arguments.

  • wcroth55  On September 21, 2020 at 11:39 am

    Just FYI, the Michigan independent citizens redistricting commission held its first meeting a few days ago. Starting in the 2022 elections, gerrymandering by the legislature will be dead and gone.

    • weeklysift  On September 24, 2020 at 6:12 am

      I hope that’s true, but Republican legislatures have shown remarkable tenacity.. We thought Florida’s citizens had restored felons’ voting rights, but the legislature found a way to take them away again.

  • Thomas Paine  On September 21, 2020 at 11:47 am

    To tag along on your historical analysis, it used to be that most people regardless of ability or educational attainment stayed close to where they grew up. The typical leaders of the community were comparatively well educated and the overall population a pretty standard distribution of talent, smarts, and abilities. One could go from town to town and find the same distribution at work.

    Over the past couple of generations, however, this changed. Opportunities became quite limited in many second and third-tier towns across the country and ease of mobility increased, so anyone with above average talent and ability left and moved to a large city where he or she could take advantage of the opportunities there. This left a lot of places in this country run by mediocrities lacking skills previous generations had that made the overall communities decent places to live. Religious fundamentalists took over, too, no longer tempered by educated secularists.

    Thus, two generations of this kind of sorting have produced vibrant large modern cities full of highly capable individuals living and working in the 21st century and wide swaths of small-town/rural backwaters where the only jobs are at Walmart, McDonalds, or Dollar General, the people keep trying to get back to a time that left them long ago, and the community leaders are simply not sharp enough to lift their constituents above the results even if they want to and most don’t.

    I grew up in such a city. Its white-collar professionals were intelligent, successful people who went to college and came back to build their lives in the same place they grew up. Those people helped make the overall experience better for everyone and served as local examples to which to aspire.

    Today, anyone who can rub two brain cells together escapes as soon as they can, and those who can’t are left to try to survive in the kind of slow death spiral that is now reflected in Cult45, QAnon, and religious extremism. And, as the main point of your article explains, these places dominate our political structure because of how that structure is set up. So, here we are today with the results and a difficult way forward to change it.

    • Anonymous  On September 21, 2020 at 1:26 pm

      Thank you for this comment

    • susanmbrewer  On September 21, 2020 at 7:04 pm

      I second the thanks. Good points.

    • Anonymous  On September 22, 2020 at 4:15 am

      Some of the people who grow up in small towns and rural areas would prefer to stay, but they want a better job than working at Walmart. This pandemic has shown that many jobs can be done remotely. Many companies are rethinking their ideas about offices and remote work.

      We should be pushing for universal broadband. Remote work requires a good internet connection, but it also makes it possible for more bright young people from small town to stay local.

      At one point, the country went through rural electrification, so that everyone (every small farm) could have electricity. Later we went through universal phone service – same thing *everyone* can have phone service. Internet is now one of those “basic services” like electricity and phone – everyone should have broadband.

      I think that it’s one of the necessary ingredients for addressing the “slow death spiral.”

      • Guest  On September 23, 2020 at 2:21 pm

        Love the universal broadband policy, Anon. Both Sanders and Warren included decent plans for it back in the primary days. Biden has made vague gestures in this direction, so it’s something we would have to push him toward (if we get the opportunity).

        To offer another big help, how about empowering workers everywhere, including those in small towns and rural areas? There shouldn’t be any shame in working a Walmart or a McDonald’s. The real shame is multi-billion dollar corporations paying poverty or poverty adjacent wages, continuing to push an outdated 40 hour work week, not providing robust benefits, etc etc. Ensuring that workers have self-empowered dignity means less pressure to move to urban areas, among other advantages.

    • weeklysift  On September 24, 2020 at 6:16 am

      Having escaped my own Midwestern small town to get an education, and then winding up in a Boston suburb, I can hardly argue with you. My hometown voted 70% for Trump.

      There is still an educated class there, centered on the regional hospital and the public school system, plus a few young shop-keepers. But the majority is as you describe.

  • r  On September 21, 2020 at 1:05 pm

    Defund every Supreme Court judge and every judge that Trump appointed and strip them of all appellate jurisdiction. Reduce their salaries and workload to zero. Congress can take these actions and it is constitutional.

  • Wade Scholine  On September 21, 2020 at 2:47 pm

    When I saw the news of RBG’s death I though “filibuster abolition and court-packing just moved up on the agenda.”

    I’ve been advocating both for years. Seeing them advocated here gives me hope they’ll be conventional wisdom soon.

  • George Washington, Jr.  On September 21, 2020 at 3:18 pm

    The problems you identify here are systemic, and aren’t going to be fixed with Joe Biden in the White House and a 51-49 Democratic majority in the Senate. Democratic senators from red states aren’t going to want to serve just one term, so they’re unlikely to support radical policies like the ones you propose, even if these only correct the inequities in the current system.

    One advantage we have over places like Syria and other minority-rule countries is that the racial and religious divides aren’t as stark as they are in those places. It’s comparatively easy for a conservative to become a liberal than it is, say, for a Sunni Muslim to become a Shia. All white people are not Republicans. At some point, the current conservative minority won’t be able to hang onto power, regardless of how effectively they manipulate the system. That may not happen for another generation, but it will happen eventually.

    • Guest  On September 23, 2020 at 2:30 pm

      Agree on the systemic nature of the problem, George. Giving DC and PR statehood (which we should probably do anyway) and packing the court are somewhat short-term measures. One point we may have to consider as central, in the effort to increase democracy on this issue, would be overturning the Permanent Apportionment Act of 1929. This way we wouldn’t have to deal with minority-elected presidents filling SC seats to begin with, among other issues.

    • frankackerman0617  On September 26, 2020 at 6:49 pm

      Hi George, thanks for all your comments here over the years. I think its very important to realize that if Biden becomes president the really hard work of healing our sick body politic will just be starting. The road back to health is long and hard.

      But, there is one healing thing everyone of us can start doing right now. That is to start viewing and connecting with every one of our fellow humans as just another passenger on this wondrous but fragile spaceship, regardless of their ethnicity, citizenship, or religious, social, or political views.

  • susanmbrewer  On September 21, 2020 at 7:09 pm

    I have been intrigued for a couple of years now with the idea of defined terms for Supreme Court Justices, with a staggered implementation that eventually gets to two appointments per four year presidential term with eighteen year SCOTUS terms. The small whiff of idealism I have left has already wondered if a grand bargain could include this and gradually lessen the politicization of the Supreme Court, not to mention the metronome of excess that swings more widely with every presidential election.

  • wcroth55  On September 21, 2020 at 7:44 pm

    I am reminded of the classic “Prisoner’s Dilemma” scenario. (https://en.wikipedia.org/wiki/Prisoner%27s_dilemma).

    In repeated computer simulations of different PD strategies (where the ‘game’ is iterated over and over again, with the histories of who each agent played against is available), there is one clear winning strategy.

    #1. Offer the compromise.
    #2a. If the other accepts the compromise, continue compromising.
    #2b. If the other “betrays” you, immediately betray them on the next iteration.
    #3. Every so often in a sequence of paired betrayals, randomly offer a compromise, to see if the ‘other’ will change.

    Much of the political back-and-forth since 1994, and certainly since 2008, resembles this. The 2011 “Red Map” project was certainly a massive, planned, “betrayal”, in game-theory terms. Obama repeatedly offered compromise (again, in the game-theory sense) and was repeatedly “betrayed”.

    So I think we can only move forward with an all-out #2b. Perhaps in 4 years, it may be time to try #3 again. But for now, I see it as the game-theory version of war. All options are on the table. As lovely as a non-partisan/staggered/term-limited SCOTUS appears… I’m no longer interested.

  • reverendsax  On September 21, 2020 at 8:32 pm

    Ari Melber tonight was mad and supported Democrats playing hardball. This means — if they win the Senate and the WH and the Congress — going all the way: enlarging the supreme court, even making it 29 or more, adding states, and every other possibility to make the majority the majority. I am glad to see this coming out. This would be a real electoral revolution — by the majority.

  • nicknielsensc  On September 22, 2020 at 12:44 am

    The easiest way to reinstate the Voting Rights Act is to simply modify Section 4b to make the Act apply to ALL government entities, not just those in certain states. That’s why Roberts struck it down, was the “disparate” effect because some were subject to pre-clearance and some weren’t. Simply make it apply to everybody.

    • weeklysift  On September 24, 2020 at 6:26 am

      The version the House passed in 2019 listed general criteria that would mark a state for preclearance. “Existence of voting rights violations during previous 25 years” was the main one. Nothing in the text picks out particular states for special treatment.

  • Ben  On September 22, 2020 at 1:48 pm

    There is a favorite of mine on Twitter who often talks about the history of agriculture (i.e. rural) in the US. She has recently laid out a concise indictment of the class and race based purge of agricultural land, saying it was/is an intentional power grab.

    She has some ideas for reversing that trend, utilizing the interest she sees from technology workers, who seem interested in invading the sector.

    Her language in writing seems direct and harsh, but I’ve listened to her podcasts, so I encourage anyone interested in reading the tweets to envision the gentlest tone possible.

    Some links:
    Dr. Taber on
    >>That’s why “the countryside used to be radical” and it’s not anymore
    https://www.wonkette.com/tenant-farming-but-make-it-fashion

    Dr. Taber’s take on some of the same Nate Silver analysis touched on here. Her plan to take back farmland votes away from the modern American landed gentry class we didn’t know we had.

  • digresster  On September 23, 2020 at 12:42 pm

    Thank you for your interesting and informative article. I live in South Africa and as a third world country, we are always affected by the actions of first world countries. I’m proud of how we rewrote history and made SA a free country. I look to America to uphold democratic and moral values and show the rest of the world what fair play means so we call all be winners.

    • Guest  On September 23, 2020 at 2:34 pm

      This is a crucial and often overlooked point, digresster, thank you. We should be pushing for more democracy/progressive gains not just for our fellow Americans, but for the people of the world at large. Breadcrumbs, scraps, and incrementalist tweaks around the edges for us means even less for vulnerable people everywhere. The global-level urgency is real.

  • Jacqueline (Bonin) Gargiulo  On September 24, 2020 at 6:42 am

    Makes sense and leads me to wonder whether it was strategic.

    • George Washington, Jr.  On September 24, 2020 at 7:05 am

      If you’re wondering whether GInsburg was assassinated, that makes no sense. First, she had been sick for a long time; if she had been a private citizen, her death wouldn’t have been a surprise to anyone. Also, if the powers that be wanted to replace her, they would have done it a year or more ago, which would have avoided any discussion of the “McConnell Rule” or any question of the legitimacy of Trump’s nominee a few weeks before the election.

      Just because some conservative conspiracy theorists think Scalia was assassinated, doesn’t mean we should go down that same rabbit hole. If I’ve misunderstood what you’re implying, I apologize.

  • Mateo Luiz  On October 1, 2020 at 2:23 pm

    blah blah blah…. the fact that you fail to also address the Massachussetts General Court (and the Mass congressional delegation for that matter) and their opposite lopsidedness tells me that you really don’t care about this issue. it’s the power over your fellow man that interests you.

    • George Washington, Jr.  On October 1, 2020 at 2:30 pm

      Massachusetts is one state. The Supreme Court’s decisions affect the entire country. They’re not comparable.

      Massachusetts, by the way, is a majority Democratic state, so it makes sense that its legislature and courts reflect that. Are you proposing that every state be required to give equal representation to both parties, regardless of how their respective populations vote? My own state of Georgia is split roughly equally between Democrats and Republicans, but it’s under almost total Republican control. Does that “lopsidedness” bother you, or it’s only a problem when Democrats have the advantage?

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