Support The Bulwark and subscribe today.
  Join Now

Why the Supreme Court Is Broken. And How to Fix It.

August 15, 2019
Why the Supreme Court Is Broken. And How to Fix It.
(Photo by Mark Wilson/Getty Images)

Can American democracy be eroding? Don’t our lives reverberate with the cacophony of engagement, anticipating the election of 2020? Isn’t that the essence of a vigorous democracy?

Well, no. For beneath the surface, democracy is being systematically subordinated to partisan interests. And a principal agent of this subversion is the Supreme Court.

America regards itself as the global exemplar of representative democracy secured by free and fair elections. But what should we call a system of government wherein politicians select their voters; discourage minorities from voting; accept unlimited funding from special interests; prioritize their policy preferences; and fill the courts with political partisans preternaturally solicitous of their electoral well-being?

Michael Tomasky suggests that we hover somewhere between genuine democracy and “competitive authoritarianism”—a hybrid typified by Victor Orban’s Hungary, wherein a political party manipulates the organs of democratic rule to perpetuate their sway.

This may sound alarmist. But consider the devolution in how we select and confirm justices of the Supreme Court and how partisan justices have undermined democracy by serving the electoral interests of one party. How, for example, did court-watchers know that Brett Kavanaugh would vote to uphold gerrymandering? Because, like the other four justices who joined him—Roberts, Alito, Gorsuch and Thomas—his rise was nurtured by the Federalist Society. And this seal of imprimatur has become less a badge of intellectual distinction than a mark of ideological reliability.

When the Supreme Court loses credibility by subordinating law to party politics, sullying its role as an independent branch of government, the ultimate loser is constitutional democracy itself.

For the sake of analysis, set aside cases which concern our most salient partisan political passions—abortion, gay marriage, gun control, and the constitutionality of the Affordable Care Act. Instead, focus on three critical rulings which directly affect the GOP’s interests in the conduct of elections: Citizens United, Shelby County, and the recent Rucho decision.

Taken together, they present a classic illustration of using a fundamental organ of government—our Supreme Court—to weaken democracy.It is no coincidence that these rulings favor one particular political party.

Start with the 2010 decision in Citizens United.

In the decade leading up to Citizens United, the Court consistently upheld campaign-finance laws. In 2003, three now-departed Republican appointees—O’Connor, Souter and Stevens—joined Justices Breyer and Ginsburg in upholding the McCain-Feingold limits on the ability of corporations and labor unions to spend money on elections.

This frustrated relentlessly partisan Republicans like Mitch McConnell. For years, McConnell had stymied legislation to limit campaign contributions, and therefore the flow of special interest money which disproportionately benefits the GOP. But he proved unable to block or repeal McCain-Feingold.

Nothing changed in the next seven years—save that Souter and O’Connor retired, and Roberts and Alito arrived. That was enough: a new 5-4 Republican majority departed from Court precedent to achieve McConnell’s objective.

Jeffrey Toobin has described the process in painstaking detail: A salient principle of Supreme Court jurisprudence is that it only decides legal issues necessary to resolve the case before it. The issue originally presented in 2009 by Citizens United was extremely narrow: whether McCain-Feingold barred corporations from running TV commercials favoring or opposing a presidential candidate for 30 days before a primary election.

Originally, the Court’s draft opinion decided only this discrete question. But a concurring opinion by Justice Kennedy advocated turning this minor case into a vehicle for unleashing unlimited corporate spending.

As Toobin explained, Justice Kennedy proposed that “[T]he Court should declare McCain-Feingold’s restrictions unconstitutional, overturn an earlier Supreme Court decision from 1990, and gut long-standing prohibitions on corporate giving.” None of these rulings were necessary to decide the case itself. Collectively, they comprised a breathtaking assertion of judicial power to erase legislation passed by Congress—which of necessity, also required the Court to reverse its own precedent.

No matter. Chief Justice Roberts withdrew his narrow majority opinion and assigned Kennedy to write a broader one. This so enraged Justice Souter, Toobin reported, that he drafted a dissent “accusing the Chief Justice of violating the Court’s own procedures to engineer the result he wanted.”

The prospect of having his tactics so publicly questioned, Toobin writes, alarmed the Chief Justice. But Souter had already announced his imminent retirement. In another departure from normal practice, Roberts scheduled the case for re-argument in the following term, and directed the parties to address whether McCain-Feingold’s ceiling on unlimited campaign contributions was an unconstitutional violation of a corporation’s right to free speech. This proposition—which had been rejected by an earlier Court—completed the dramatic transformation proposed by Justice Kennedy.

Bt the succeeding term, Souter had retired. At this point, notes Toobin, “the real question for [Roberts], it seems, was how much he wanted to help the Republican party. Roberts’ choice was: a lot.”

A 5-4 Republican majority proceeded to gut McCain-Feingold.

Incensed, Stevens issued a powerful dissent. The Framers, Stevens observed, “had little trouble distinguishing corporations and human beings. . . . While American democracy is imperfect, few outside the majority of this court would have thought its flaws include a dearth of corporate money in politics.”

But his most penetrating objections concerned Roberts’ procedural gymnastics and their effects on democracy itself. “The court changed the case so it could change the law,” Stevens wrote. “A democracy cannot function effectively when [voters] believe laws are being bought and sold.”

As well they might. A seminal study in 2013 by professors at Northwestern University confirms that, in terms of political influence, the top 1 percent molds public policy—and that these people are twice as likely to be Republicans as Democrats.

A related study from Princeton found that major donors succeeded in getting their favored policies adopted about half the time, and in stopping legislation they opposed nearly all the time. The depressingly undemocratic corollary was that “the preferences of the average American appeared to have only a minuscule, near zero, statistically non-significant impact upon public policy.” Which is, more or less, a description of how plutocracies function.

By lifting restrictions on spending by corporations, unions, and nonprofits on political advertising and media campaigns, Citizens United transformed the face of American elections.

In the meanwhile, the Supreme Court is undermining another linchpin of democracy—the right to vote.

The Republican party is overwhelmingly white. But this demographic is currently a declining percentage of our electorate. To maximize its electoral chances, the GOP uses various procedural maneuvers to help decrease the number of minority voters..

Some of the techniques are no surprise: eliminating or moving polling places and making it harder to register new voters. What remains startling is the Roberts Court’s demolition of legal barriers to some of this pretextual chicanery – most notably, racially-discriminatory voter ID laws.

The Court’s 2013 ruling in Shelby County opened the floodgates. The case concerned a critical provision of the 1965 Voting Rights Act: “preclearance” under Section 5—which required that certain states and counties with a history of racial discrimination in voting practices seek approval from the DOJ before making changes to their election laws.

The Supreme Court upheld the constitutionality of this provision in 1966. In 2006, Congress reauthorized the Voting Rights Act—including the preclearance provision. Enter the Shelby County case – and the Roberts court..

By the time Shelby County reached the high court, a number of Republican-enacted photo ID laws were pending which would disproportionately impact minority voters.The supposed rationale for these laws was transparently phony. There was—and is—no statistically significant evidence of in-person voter fraud. And their political impact was obvious: as a matter of demographics, most of the voters to be affected were likely to vote for Democrats.

Nonetheless, in another 5-4 opinion, the chief justice ruled that the “pre-clearance” provision for scrutinizing voter ID laws was unconstitutional.

The essence of Roberts’ stated reasoning was that recent racial progress in the South had rendered pre-clearance of new voting laws unfair to the states.

But this rationale was, at best, disingenuous: Roberts’ distaste for pre-clearance long pre-dated Shelby County. Thirty years prior, as a Republican lawyer in the Reagan-era Justice Department, Roberts had denounced it. His view was that voting laws which discriminate in practice can only be prohibited when their originators are proven to have intended this effect. This standard is essentially a license for states to do whatever they like, so long as no one says out loud: “We’re trying to depress minority turnout.”

In 2013, the evidence that Republican state legislators were poised to enact potentially discriminatory laws was staring the Roberts court in the face. As Congressman John Lewis- a hero of the civil rights movement – admonished the Court: “In response to more minority voters participating in the political process, six of the nine states fully covered under Section 5 have passed legislation in the last two years designed to restrict voting rights and access to the polls.”

Plainly, the Shelby County decision rested neither on genuine concerns about voter fraud nor the supposed racial progress invoked by Roberts—but rather on the chief justice’s decades’ old antipathy to pre-clearance.

With unseemly alacrity, in the immediate wake of the Shelby County decision 14 states—eight southern, all but one governed by Republicans—enacted or began enforcing strict voter ID laws. Texas did so within hours.

In her dissent, Justice Ginsberg predicted this legislative tsunami. But of all the rebukes to Roberts’ invocation of our supposedly benign racial present, that of former Circuit Judge Richard Posner is the most devastating. Posner is a Republican, a Reagan appointee, and a pre-eminent conservative who is the most frequently cited legal scholar of all time. His judicial disdain for the transparent fakery of voter ID laws—set forth in a book and in a 30-page dissent—is palpable and unsparing.

First, he explodes the myth of voter fraud. Spelling out what any objective observer knows, Posner affirms that “repeated investigations . . . show that there is virtually no in-person voter fraud nationally. ”

Pointedly, he dismisses the idea that the bogus pretext for such laws immunizes them from judicial scrutiny: “As there is no evidence that voter-impersonation fraud is a problem, how can the fact that a legislature says it’s a problem turn it into one? If the Wisconsin legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials?”

To the contrary, Posner explains, “there is only one motivation” for such laws: “to discourage voting by persons likely to vote against the party responsible.” Surveying nine states imposing the strictest voter ID laws, Posner found that all were governed by Republicans. Lest one miss the point, Posner concluded that these laws are “highly correlated with states having a Republican governor and Republican control of the legislature and appear to be aimed at limiting voting by minorities, particularly Blacks.”

Finally, Posner demonstrates why poor and minority voters are less likely to have ID such as driver’s licenses—not because they were scheming to perpetrate voter fraud, but because they lack the money, time, or ready access to the agencies which issue the required forms of identification.

In 2020 this could affect results in states with an emerging minority vote – such as North Carolina, Georgia and Texas.

The 2018 gubernatorial election in Georgia serves as example. The Republican candidate, Brian Kemp, was Georgia’s Secretary of State. Under his supervision, the state purged more than 500,000 voters from the rolls in 2017, and froze 53,000 voter applications because the applicant’s information did not precisely correspond with state and federal records—even by a comma or hyphen.

As the New Republic reports, “70 percent of those forms were filled out by African-Americans.” In Kemp’s extremely narrow victory over Stacy Abrams, these practices mattered. As an elections lawyer remarked: “I think it’s a very fair overall statement . . . that we would not see the level of disenfranchisement [in Georgia] that we see today if pre-clearance were still in effect.”

A healthy democracy does not allow political parties to choose their own electorate by disenfranchising selected voters. But, effectively, that is what the Court’s Republican majority did in Shelby County—then sanctioned again in its recent gerrymandering decision.

Gerrymandering has a long bipartisan tradition. But aided by sophisticated modeling and computer software, Republican state legislatures have birthed congressional districts so geographically attenuated and rigged for results that their inventiveness inspires awe.

Why this GOP advantage? Aside from their growing disaffection for unguided democracy, Republicans control most governorships and state legislatures. Left unchecked, they create a surplus of Republican House districts by jamming Democratic voters into the fewest districts possible.

The results are impressively undemocratic. Of 435 House seats, perhaps a hundred are truly competitive. In 2012, Republicans won 1.5 million fewer votes than Democrats, yet won 33 more House seats. Even in 2018, the Democrats’ blue wave would have been bigger but for gerrymandered congressional districts which gave Republicans an immense structural advantage.

Take the map drawn by Republicans in North Carolina pursuant to the census of 2010. Although the GOP garnered roughly half of the popular vote in 2018, it won 10 congressional seats, the Democrats won only 3. Ruefully, a Republican legislator observed: “I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”

It is hard to conceive a more naked effort to strip voting democracy of meaning. Little wonder that a federal court in North Carolina held this cynical scheme unconstitutional.

Enter, once more, the Chief Justice and his Republican colleagues.

Called upon to simply to uphold the lower court in Rucho v. Common Cause, the Roberts court—which had been so active in Citizens United and Shelby County – claimed a newfound judicial modesty.

Acknowledging the obvious, Roberts conceded that “excessive partisanship in redistricting leads to results that reasonably seem unjust” and that partisan gerrymandering is “incompatible democratic principles.”

Nonetheless, he declared, remedying such injustices is beyond the capacity of federal courts. This ruling left the GOP’s handiwork in North Carolina intact and foreclosed legal challenges to future abuses. Gerrymandering can now flourish nationwide.

In a vehement dissent, Justice Kagan challenged Roberts’ sudden recourse to passivity. The congressional map in North Carolina “debased and dishonored our democracy.” And the standard through which the lower court invalidated it, Kagan demonstrated, was eminently workable:

As many legal standards do, that test has three parts: (1) intent; (2) effects; and (3) causation. First, the plaintiffs challenging a districting plan must prove that state officials’ “predominant purpose” in drawing a district’s lines was to “entrench [their party] in power” by diluting the votes of citizens favoring its rival . . . Second, the plaintiffs must establish that the lines drawn in fact have the intended effect by “substantially” diluting their votes… And third, if the plaintiffs make those showings, the State must come up with a legitimate, non-partisan justification to save its map…If you are a lawyer, you know that this test looks utterly ordinary. It is the sort of thing courts work with every day.

Further, Kagan spelled out how the Court’s inaction subverted democracy by rendering the power to vote all but meaningless:

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

The effect is to make gerrymanders far more effective and durable than before, insulating politicians against all but the most titanic shifts in political tides. . . . By substantially diluting the votes of citizens favoring rivals, the politicians of one party had succeeded in entrenching themselves in office. They had beat democracy.

Yet again.

In three rulings marked by procedural maneuvering, intellectual inconsistency, and studied obliviousness to easily-discernable reality, a 5-4 majority of Republican justices empowered their party to accept billions in unlimited campaign donations; systematically suppress minority voting; and institutionalize gerrymandering. Together these rulings further “competitive authoritarianism,” wherein one political party manipulates an essential organ of democratic rule in a manner which undermines democracy itself.

To be sure the GOP and the Federalist Society did not conjure politicizing the High Court from the ether. Whatever one feels about Roe v Wade, that decision aroused conservatives who viewed it as constitutionally unwarranted and morally repugnant – and, therefore, blatantly political. And the nomination of the fiercely intellectual conservative Robert Bork—a political lightning rod who had fired special prosecutor Archibald Cox at the behest of Richard Nixon—helped redirect the confirmation process from a relatively dispassionate consideration of a nominee’s professional qualifications to partisan warfare.

Nonetheless, the Federalist Society has been uniquely successful in controlling the selection process, serving as a gatekeeper for judicial nominees under Republican presidents—notably including Donald Trump. That some progressives wish to replicate its ideological chokehold under Democratic presidents compounds the problem by abandoning the principle of judicial independence. No matter which party wins or loses, American jurisprudence as exemplified by our highest court should not degenerate into politics by other means.

What is to be done?

Only one proposal combines plausibility with the hope of enhancing judicial integrity and credibility: term limits for Supreme Court justices.

Americans assume that justices are appointed for life. But this custom does not arise from our Constitution. Article III says only that: “Judges, both of the supreme and inferior Courts, shall hold their offices during good behavior.”

Nothing in his language entitles justices to life tenure. It merely provides that appointees can occupy some federal judgeship during good behavior.

Given that, the eminent constitutional expert Laurence Tribe cites an alternative term of service: 18 years on the Supreme Court, with the option of serving on another federal court thereafter.

Every two years, the sitting president would appoint a new justice, replacing one who cycles off the court after an 18-year term. This span of time covers four and a half presidential terms, which guarantees that at least three presidents would appoint new justices.

By eliminating life tenure for justices, this diminishes the political stakes of each appointment, and increases the prospect of political heterodoxy. It reduces the temptation to appoint younger justices—not because of their qualities, but because they can help cement a generational stranglehold on the law. It lessens the prospect of justices hanging on to assure that their replacement will be of the same party.

And finally, as Tribe says, it has a fair chance—if not the certainty—of passing constitutional muster under Article III.

One hesitates to change deeply-rooted traditions. They often exist for a reason, even if that reason is, on examination, obscure. But the partisan degradation of our Supreme Court is a far more deleterious departure. It is past time to restore it as an independent branch of government—a guardian of democracy whose integrity rebuilds respect.

Richard North Patterson

Richard North Patterson is a lawyer, political commentator and best-selling novelist. He is a former chairman of Common Cause and a member of the Council on Foreign Relations.