The Consequences of Counter-Majoritarian Government
If democracy means majority rule, our Republic may no longer be a democracy
Twice in this century, a Republican won a Presidential election with a smaller number of popular votes than their Democratic opponent. This was a result that the Constitution does not give the people- you know, “us”, the voters- the power to directly choose our own head honcho. Presidents are chosen through the peculiar machinery of the Electoral College (not an institution of higher learning, btw) which is how we got George W. Bush in 2000 and Donald Trump in 2016.
Elections, as the pundits incessantly remind us, have consequences. We received an egregious reminder of this aphorism Monday when a draft of a Supreme Court decision overturning Roe v. Wade was leaked. The Court has a 6-3 majority of Justices appointed by Republican Presidents. Of the seven Supreme Court Justices named to the Court between 2001 and 2021, five were appointed by the 2 men who lost the popular vote for the Presidency. Effectively, the two people given the power to make lifetime appointments to the Court have selected a majority of the current Justices. The obvious conservative tilt of this Court surfaced again during the oral arguments made before it in Dobbs v. Jackson Women’s Health Organization, the Mississippi suit challenging Roe. Still, it surprised many court watchers that the majority seemed poised to overrule a precedent that had stood for 50 years.
Then again, this should not be at all surprising if you’ve been observing the growth of the conservative project to gain control of the Federal judiciary over the past four decades. The genesis of this project, as I pointed out years ago, was the “Powell Memo” that urged the use of the Federal courts as the means of pushing back against progressive gains made since the New Deal years of the 1930s. It developed over time as various organizations raised money for lobbying and for grooming young conservative lawyers for the Federal judiciary. While many of these groups are obscure, dark-money non-profits, others, like The Federalist Society (a talent agency for conservative lawyers) are well-known. Rich conservative donors (think Koch brothers) regularly donate money to certain law schools (e.g. George Mason University) to promote the ideas of conservative legal scholars. Despite progressive efforts to match the Right’s legal crusade, they have fallen short of achieving the same effectiveness. Roe being overturned means the Holy Grail of the conservative movement has been achieved.
It is not difficult to fathom how this came to be. Presidential nominees must be confirmed by the Senate. As I and many others have pointed out, Senate rules allow several opportunities for the minority party to block nominees and legislation. The most prominent of these is the filibuster, which I have discussed previously:
During the first six years of Barack Obama’s administration when the Democrats held the Senate majority, the Republican minority led by Mitch McConnell repeatedly obstructed the President’s agenda, employing the filibuster an unprecedented number of times… In 2013, frustrated by the Republican minority blocking President Obama’s nominees to the Federal courts, Majority Leader Harry Reid engineered a change to Senate rules which allowed judicial nominees (except Supreme Court Justices) to be confirmed by a simple majority. Subsequent to Donald Trump’s election, [now] Majority Leader McConnell extended the simple majority rule to Supreme Court nominees.
It was notable that the filibuster for Supreme Court Justices was still allowed by the Senate rules in effect in 2016. When Justice Antonin Scalia died in February 2016, President Obama nominated Merrick Garland, then chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, to fill the seat. Within hours of Scalia’s death, Senate Majority Leader McConnell stated the vacancy should be filled by the next president following the November 2016 election. Consequently, Garland was never given a hearing before the Senate Judiciary Committee, or even the opportunity to have his nomination confirmed by an up-or-down floor vote of the entire Senate. Within days of his inauguration, President Trump nominated Neil Gorsuch to take Scalia’s place. Gorsuch’s confirmation was a fait accompli, given McConnell’s elimination of the filibuster for Supreme Court nominees.
The coda, of course, is that, when Justice Ruth Bader Ginsburg died on September 18, 2020, Trump quickly nominated conservative Amy Coney Barrett to fill her seat. She was confirmed a week before the November 3 election. Senate Democrats were prevented by McConnell’s rule change from using the filibuster to block Barrett’s confirmation. Chaulk McConnell’s position that the winner of an upcoming Presidential election should fill a vacancy that occurs in the fourth year of a President’s term up to either slick political tactics or naked ruthlessness.
All these political machinations are ultimately the result of Article I of the Constitution which gives each state 2 Senators regardless of population. In the 114th Congress where the Republicans had their 2016 majority, their 54 Senators garnered 20 million fewer votes than the 44 Democrats in the minority (2 Senators were independents who caucused with the Democrats). The consequence of those elections- the majority of Justices on the nation’s highest court were nominated and confirmed by people elected by a minority of the voters.
A basic tenet of democracy is majority rule. In our republic, our representative democracy, we defend against a tyranny of the majority by having regular elections and fixed terms for political officials. At the same time, we protect minority rights as a foundational principle of our government, yet still, understand minority rule is anathema to free society. In imposing their ideology on behalf of a minority, the members of the nation’s highest court are challenging their very legitimacy.
For further reading on this topic: https://www.theatlantic.com/ideas/archive/2018/07/how-conservatives-won-the-battle-over-the-courts/564533/ https://www.newyorker.com/news/daily-comment/why-there-are-no-women-in-the-constitution
Friday Night YouTube Music
It’s been a busy week in many ways, and I haven’t found time to put together music videos. In light of this week SCOTUS news, I believe celebrating some female musicians would be appropriate.
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