The Republican Court and the Era of Minority Rule

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President Donald Trump, from right, speaks while Judge Neil Gorsuch and Associate Justice Anthony Kennedy smile during the swearing in ceremony of Gorsuch on Monday, April 10, 2017.

Democrats have won the national vote in six of the last seven presidential elections, which, with the retirement of Anthony Kennedy, will have resulted in the appointment of eight of the Supreme Court’s nine justices. And yet four of those justices will have been appointed by presidents who took office despite having fewer votes than their opponent. Republicans will have increasingly solid control of the court’s majority, with the chance to replace the sometimes-wavering Kennedy with a never-wavering conservative movement stalwart.

Over the last generation, the Republican Party has moved rapidly rightward, while the center of public opinion has not. It is almost impossible to find a substantive basis in public opinion for Republican government. On health care, taxes, immigration, guns, the GOP has left America behind in its race to the far right. But the Supreme Court underscores its ability to counteract the undertow of its deepening, unpopular extremism by marshaling countermajoritiarian power.

The story really begins in December 2000. George W. Bush had a tenuous hold on the Electoral College, despite having half a million fewer votes nationwide. But his edge depended on a narrow margin in Florida, which was attributable to the fact that voting machines in Democratic counties failed to register a higher percentage of votes than machines in Republican counties. A recount would threaten that outcome (and in fact, a hand count that included every kind of missed vote, including ballots that both wrote and checked in the name “Al Gore,” would have given Democrats the presidency). But Bush’s brother controlled the state’s government, and it doggedly refused to allow the recount to which the trailing candidate was entitled. In the end, five Republican Supreme Court justices narrowly ended the recount and gave Bush the presidency.

It was during the Bush era that conservatives began spreading visual representations of the country-level vote. Flattened out, they displayed a sea of red, punctuated by small blue dots in which most of the population lives. The maps, one of which Trump is known to display, create the illusion of popular support. The trick of course is that the Republican red represents acreage rather than people.

And yet that trick underscores the Republican Party’s legislative competitiveness. The House has a massive Republican tilt, requiring Democrats to win the national vote by six or seven points in order to secure a likely majority. The Senate has an even more pronounced tilt, overrepresenting residents of small states, which tend to be white and rural. George W. Bush in 2000 and Trump in 2016 each won 30 states while losing the national vote. Since each of these states has equal representation in the Senate, the chamber gives Republicans an innate advantage. If every state’s Senate vote reflected its national orientation, Republicans would have a natural supermajority. Merely attaining parity in an evenly divided country requires Democrats to win at least ten seats in Republican-leaning states.

The Electoral College reflects the same overall bias. By reducing the power of voters who live in states that vote heavily for one candidate or the other, and magnifying the power of voters who live in closely balanced states, it gives disproportionate influence to white voters.

The Republicans have consciously leveraged their minority power. In state after state after state, Republican governments have made voting more cumbersome, in order to winnow out the disproportionately poor and minority voters who such restrictions would discourage from the hassle. The conservative judicial agenda has increasingly focused on reading conservative policy preferences into the law. To be fair, for a generation starting with the Warren Court, liberal judges did the same, using judicial rulings to enshrine policies they could not enact through Congress. Now the Court is reverting to its historical role as a bastion of conservatism, frustrating the public’s demands for progressive action.

The Court’s near decision to destroy the Affordable Care Act previews the growing enthusiasm on the right for what legal scholar Jeffrey Rosen called “the Constitution in Exile.” Their notion is that the Constitution guarantees not only political rights but a broader protection of property rights and the small government agenda. Even if Democrats gain an enduring advantage in elected office, large enough to overcome all the white and rural biases in the system, an activist conservative majority might strike down large segments of whatever they enact.

The central drama of the Trump era is a struggle to defend American democracy against an authoritarian leader. The Republican Party’s comfort with the crude authoritarianism of its president, though, did not spring out of nowhere. It is the culmination of a party increasingly comfortable with, and reliant on, countermajoritarian power.

The Republican Court and the Era of Minority Rule