Emptying the Archive — The Illegitimate Court
Note: As part of an ongoing project, I am posting many old essays that, for a variety of reasons, I decided not to post publicly at the time they were written. To the best of my ability, I will note at the beginning of each piece the context in which it was written.
I wrote this in the summer of 2019 in response to the Supreme Court’s decision in Rucho v. Common Cause, a case in which the Court ruled that partisan gerrymandering claims are nonjusticiable in federal courts. In my opinion, this was the most egregious Supreme Court decision since it invalidated major portions of the Voting Rights Act in Shelby County v. Holder in 2013.
The Illegitimate Court:
In Dred Scott v. Sandford, the Supreme Court declared that “[negroes] are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to the citizens of the United States.” It took the deaths of nearly a million Union soldiers in the Civil War to overturn Dred Scott.
In the Civil Rights Cases, the Supreme Court held that the Civil War Amendments did not empower Congress with the ability to address discrimination by private individuals. The Court’s decisions in the Civil Rights Cases and in Plessy v. Ferguson, which upheld the ability of states to implement racial segregation, formed the legal foundation of Jim Crow and stood as the law of the land for nearly sixty years. Overturning these cases required a decades-long struggle. In the process, thousands of black Americans (and many white allies) were murdered at the hands of terrorists seeking to entrench white supremacy. Millions fled the South as refugees. Millions more were deprived of basic human rights and dignity.
With Rucho v. Common Cause, the Roberts Court has staked its claim in the regressive pantheon. In deciding that federal courts cannot remedy partisan gerrymandering, the it has embraced the Court’s white supremacist legacy, and abdicated any semblance of protecting the American people from the countermajoritarian implementation of white supremacist governance. This decision, along with the gutting of the Voting Rights Act in Shelby Co. v. Holder, represents its seizure of the mantle of Dred Scott, The Civil Rights Cases, and Plessy v. Ferguson.
Republicans have become the party of white identity politics and, in light of demographic trends, they faced a dilemma. Would they abandon white supremacy in an effort to stay politically viable? Or would they cling to it and become increasingly irrelevant? This is a trick question. Republicans opted for a third option: apartheid. Republicans decided they would prefer to implement permanent (political) minority rule through a combination of gerrymandering and voter suppression. In Rucho v. Common Cause, the Supreme Court declared that it would not interfere with states that adopt this approach. As Adam Serwer of The Atlantic put it, “[t]his is a fundamentally anti-democratic decision, but it reflects that the conservative ideological project in the [U]nited [S]tates can only proceed by entrenching countermajoritarian procedural advantages rather than popular support from the people themselves.”
Once Republicans gain control over a state, there is no federal obstacle preventing them from utilizing extreme partisan gerrymanders to more or less guarantee permanent Republican control.[1] Moreover, despite their defeat on the citizenship question, conservatives still have pathways to create more extreme partisan gerrymanders than we have seen to date.[2] With a combination of increasingly Republican-favored apportionment schemes and voter suppression, Republicans can rule indefinitely with only a small minority of Americans supporting them.
As Adam Serwer of The Atlantic put it, “[t]his is a fundamentally anti-democratic decision, but it reflects that the conservative ideological project in the [U]nited [S]tates can only proceed by entrenching countermajoritarian procedural advantages rather than popular support from the people themselves.”
To be fair, prior to Rucho, the Supreme Court had never overturned a gerrymandered map for being excessively partisan. But like Dred Scott and Plessy, the Court’s decision in Rucho represents not so much a change in the legal landscape, but an accession to and legitimization of existing antidemocratic and unjust practices. And like Dred Scott and Plessy, the Court’s ruling is contrary to fundamental American values.
There is little more central to the American ethos than the idea that to be legitimate, a government must be accountable to the people. The second and third sentences of the Declaration of Independence articulates perfectly the immorality of the Supreme Court’s decision on partisan gerrymandering:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government ….
If the rules of a government guarantee that one person or group retains permanent power, no matter the will of the people, that government has no valid claim to having the consent of the governed. The state governments the Roberts Court approved today are every bit as anti-American as King George III was in 1776.
Overturning Dred Scott took a civil war. Jim Crow took decades. Rucho represented a tragic day for the United States. How many years will pass and how many lives will be sacrificed this time around before justice is achieved? How much suffering must be endured in the process? And even if the injustice is ultimately overturned, will the years of suffering imposed on the victims of countermajoritarian governments ever be remedied?
Footnotes:
[1] It is not just the composition of the legislature that will be affected. There are various mechanisms that can ensure that unified control of a state government will result in indefinite control of all branches of government, not just the legislative. Most notably, voter suppression makes it challenging for for Democrats to win statewide elections. And in some states (Wisconsin and North Carolina, most notably), Republican legislatures have stripped statewide offices of their power after they were won by Democrats, leaving actual power with the gerrymandered legislature and rendering Democratic governors impotent even if they do manage to get elected.
[2] The reasons Republicans sought to include the citizenship question were two-fold. First, it would have led to an undercount of people of color, especially Latinos and immigrants who might be fearful of being targeted by the Trump Administration should they participate in the census and disclose their citizenship status, thereby depriving people of color the appropriate levels of federal funding and political representation. Second, it would have provided the data necessary for Republican-controlled states to apportion congressional seats based on citizen-voting-age-population (CVAP), as opposed to the number of persons. CVAP would have facilitated the creation of districts that are even more friendly to Republican (and white) voters than can be made under existing rules and with existing data. Even though the Trump Administration has backed off its efforts to include the citizenship question in the census, it has made it clear that it will pursue this data through other means. Republicans may also try to apportion based on other measures of population, such as eligible voters, which would accomplish much of the same thing as making maps based on CVAP, but also allow further distortions based on disenfranchisement schemes. Republicans could then enact any number of insidious laws that restrict voting eligibility. For example, they could restrict voting eligibility to persons who have certain authorized state ID (which must be obtained at that person’s expense). They could also try to limit the franchise to persons who either pass a literacy test or have a diploma from a “non-failing” high school or approved college (a designation which will presumably exclude many minority-dominated schools but includes many non-accredited religious high schools and colleges). They could also permanently disenfranchise all persons ever convicted of any crime whatsoever (and using overpolicing of “quality of life” crimes in minority neighborhoods to effectively purge people of color from voter eligibility), or any person who owes money to the state (court costs, unpaid fines from summonses or parking tickets, unpaid taxes, etc.). I have severe doubts that this Supreme Court would curtail any of these practices.
