Earlier this week, three Republican-appointed judges in Texas empowered local election officials to disenfranchise any Texan who votes by mail.
In Texas, as in many other states, officials can reject a mail-in ballot if the signature on it does not match the signature on a voter’s registration. The officials who evaluate these signatures almost never have any training in signature verification, and the state does not provide them with any standards to guide their signature reviews. Which is to say: Election officials can disenfranchise voters on the basis of their own subjective, inexpert impressions about whether two cursive scribbles were drawn by the same hand.
What’s more, unlike in some other states, officials in Texas are not obliged to alert early voters when their ballots are rejected, so as to give them an opportunity to challenge the rejection or submit a new ballot before Election Day. In September, a district court ruled that this lack of due process was unconstitutional. The court ordered the state to provide voters with the opportunity to challenge a ballot rejection before Election Day.
But a three-judge panel (two appointed by Reagan, one by Trump) on the Fifth Circuit Court of Appeals overturned that order. “Texas’s strong interest in safeguarding the integrity of its elections from voter fraud far outweighs any burden the state’s voting procedures place on the right to vote,” Judge Jerry E. Smith wrote, ignoring that voter fraud is virtually nonexistent in the United States.
On the same day that Smith handed down this ruling, four conservative Supreme Court justices voted to (effectively) restrict access to the ballot in Pennsylvania.
The Pennsylvania Supreme Court had previously ordered the state to count all mail-in ballots received up to three days after November 3, a measure intended to prevent voters from being disenfranchised by untimely mail delivery. The Pennsylvania GOP argued that their state legislative majority had unilateral authority to write election rules, as the U.S. Constitution says that “each State shall appoint, in such Manner as the Legislature thereof may direct” members of the Electoral College. Democrats control the governorship and State Supreme Court in Pennsylvania, both of which are elected by popular vote. But Republicans hold the state legislature, which heavily overrepresents rural areas, so the GOP has enjoyed uninterrupted control of the Pennsylvania State Senate since 1994 — a period in which Pennsylvania voters backed the Democratic Party in five of six presidential elections. In other words, Pennsylvania Republicans argued that the least democratic branch of the Pennsylvania state government has the power to dictate whatever election rules they wish — even rules that the State Supreme Court deems unconstitutional.
When the U.S. Supreme Court handed down its ruling in this case Monday, it provided no written opinions. So it is not clear precisely what Neil Gorsuch, Brett Kavanaugh, Samuel Alito, and Clarence Thomas were affirming when they voted in favor of the Pennsylvania GOP. Nor do we have access to John Roberts’s rationale for joining his liberal colleagues in opposing the Pennsylvania Republican Party, thereby forming a Supreme Court deadlock that will leave Pennsylvania’s three-day mail-in-vote grace period in place.
But we do know that if there had been one more Kavanaugh or Gorsuch-esque justice on that court, fewer Pennsylvanians would have their votes counted this November. And we also know that if five conservative Supreme Court justices accepted the Pennsylvania GOP’s argument about their state legislative majority’s powers, then Republican state legislatures across the country could tailor voting rules and restrictions to their presidential nominee’s needs, unbound by the tethers of state constitutions.
We also know that a fifth far-right justice will (almost certainly) be confirmed to the court next week.
The Texas and Pennsylvania cases spotlight one dimension of America’s judicial crisis. In the U.S. today, the conservative legal movement is not merely ideological but partisan. It not only undermines democracy in a broad sense — by entrenching corporate domination of the economy and political system, green-lighting partisan gerrymandering, or vetoing democratically enacted legislation on specious grounds — but also in the basic sense of facilitating Republican voter suppression and targeted disenfranchisement. And once Amy Coney Barrett is confirmed to the Supreme Court, John Roberts’s preoccupation with safeguarding his panel’s legitimacy will cease to be a binding constraint on the conservative majority’s ability to advance minority rule.
Nevertheless, a majority of Americans want Amy Coney Barrett confirmed to the Supreme Court. In new polls from Morning Consult and Gallup, 51 percent of Americans say that the Senate should entrust Barrett — a far-right judge who has been on the bench for just three years, and who did not feel comfortable telling the Senate that presidents cannot postpone elections, or that climate change is real, or that birthright citizenship is constitutional — with one of the most powerful political offices in the United States, a position that will allow her to shape state and federal policy, unconstrained by democratic accountability, for the rest of her life (which, per actuarial tables, is likely to last until 2055).
This poll result reflects the second, less-discussed dimension of our judicial problem: The Supreme Court holds a proud place in (red and blue) America’s civic religion, and decades of conservative judicial activism have done nothing to change this. Over the past ten years, the Roberts Court gutted the Voting Rights Act, banned limitations on corporate political spending, effectively legalized most forms of political bribery, rewrote the Affordable Care Act in a manner that cost millions of Americans access to Medicaid, restricted the capacity of consumers and workers to sue corporations that abuse them, nullified state-level school-desegregation efforts, and committed various other affronts to Democratic interest groups and values. And yet, in August of this year, 56 percent of Democrats approved of the job that the Supreme Court was doing.
In some respects, the conservative movement’s obsession with the courts is a testament to its weakness. There is no popular majority for banning abortion, scaling back the welfare state, or eroding basic labor and consumer protections in the United States — and, judging by the millennial and Zoomer generations’ political views, there never will be. The right has responded to this reality by rapidly stocking the judiciary with as many 40-something-year-old reactionaries as it can find. Some progressives look at this aspect of the Trump legacy and comfort themselves with the thought that the courts are a weak institution: John Roberts commands no divisions, judicial review is not in the Constitution, and historically, the Supreme Court has adjusted its jurisprudence to match prevailing political sentiment.
And yet, the fact that the Roberts Court has managed to abet minority rule, while retaining majority approval, sits uneasily with this analysis. The Court may feel constrained by public opinion on high-salience issues, but the minor issue of free and fair elections doesn’t seem to qualify; how else can one explain the dearth of backlash to John Roberts gutting a voting-rights law that had passed unanimously in the U.S. Senate? The Court may pay some mind to the balance of political forces when deciding high-profile cases, but the more the court does to abet economic inequality and voter suppression, the less the balance of political forces within American society will reflect public opinion. And anyhow, as we’ve already seen, public opinion in the U.S. is reflexively deferential to the Supreme Court.
Democrats could do more to politicize the Court and poison its image in the eyes of its base. But the party tried to do just that during Barrett’s confirmation hearings. In those televised proceedings, Democratic senators hammered home the threat that Republican judges pose to Americans’ health care and democracy. Yet only a small minority of voters watched these hearings. And the dominant impression that the event left in the minds of the median voter appears to have been: Amy Coney Barrett is a nice, sharp lady. In late September, 14 percent of Democrats thought that the Senate should vote to confirm Barrett, according to Morning Consult; now, 32 percent do.
Meanwhile, the Democratic Party’s most prominent idea for averting far-right dominance of the Supreme Court for a generation — adding new liberal justices to the body the next time they control the federal government — is overwhelmingly unpopular. In a recent New York Times/Siena College poll, 58 percent opposed court expansion, while 31 percent supported it.
The most hopeful interpretation of this data (for those of us who don’t wish to be ruled by reactionary clerics) is that they reflect voters’ inattention to the Supreme Court more than anything else. Yes, court expansion may be deeply unpopular, but how many single-issue, “nine justices” voters are there in the U.S.? The Roberts Court’s assaults on voting rights and labor made no lasting impression on a majority of Democrats. If Biden expanded the court in March 2021, how many nonconservative voters would remain agitated about the 11- or 13-member high court in November 2022? It is at least possible that non-Republican voters would gradually reconcile the expanded court with their learned reverence for the judiciary, just as they previously reconciled Bush v. Gore with elementary-school civics.
Regardless, as recent events in Texas and Pennsylvania demonstrate, the costs of acquiescing to the status quo outweigh those of inspiring backlash. If Democrats have the power to curb the Roberts Court’s assault on democracy next year, they should use it. They might not get another chance.