Assuming that the White House errs on the side of sanity, Democrats may be unable to prevent President Trumpâs Supreme Court pick from being confirmed. But if they play their cards right, they may be able to highlight the single most important issue now confronting American democracy: increasingly unrepresentative minority rule.
On issue after issue, majority views are stifled. Regarding the Supreme Court, Republicans have become precisely what they have long pretended to abhor: a party relying upon unelected, âelitistâ judges to win political disputes in the courts that they canât win at the ballot box.
As New York ‘s Jonathan Chait trenchantly points out, Democrats have received more votes than Republican nominees in six out of the last seven presidential electionsâstarting with Bill Clinton in 1992.
Yet four of the eight Supreme Court justices whose judicial activism has dominated American politics since Bush v. Goreâthe nakedly partisan decision handing the presidency to George W. Bush, Lion of Baghdadâhave been appointed by a Republican president.
The results have been damaging to our democracy, none more than the 2010 Citizens United decision, in which the Supremes essentially ruled that corporate money is speech, rendering virtually all campaign finance laws toothless on First Amendment grounds. This has corrupted our politics almost beyond measure. In his dissent to the 5-4 decision, Justice John Paul Stevens wrote that the ruling “threatens to undermine the integrity of elected institutions across the Nationâ¦.[a] democracy cannot function effectively when its constituent members believe laws are being bought and sold.â
Who could now believe anything else?
Then thereâs D.C. vs Heller, the 2008 decision invalidating gun control laws based upon an absolutist reading of the Second Amendment, at odds with the plain text, which includes the phrase âwell-regulated.â Over 200 years, such an interpretation never occurred to anybody until Justice Antonin Scalia dreamed it up. In view of the subsequent carnage, even Scalia had second thoughts, telling a Colorado audience after a grisly mass murder committed by a mental patient wielding an AR-15 that the right to keep and bear arms was not absolute.
The brilliant jurist gave as an example of a weapon that might be forbiddenâI am not making this upâa hand-held rocket launcher capable of bringing down an airplane. He was aÂ real card, Justice Scalia.
Although the great majority of gun owners (myself included) would favor laws taking military weapons out of civilian hands and imposing strict background checks, a Republican Party completely in thrall to the National Rifle Associationâwhose money, even Russian money, is deemed speech after allâresists sensible legislation. In consequence, mass shooting incidents have become an increasingly common feature of American life, rendering the sane majority helpless and fatalisticâa bad state of mind in a democratic republic.
Should a Republican Senate jam throughÂ the nomination of yet another cookie-cutter Federalist Society ideologue before Novemberâs congressional elections, Jeffrey Toobin of The New Yorker predicts some rulings we can expect.
The Supreme Court, he writes, âwill overrule RoeÂ v. Wade, allowing states to ban abortions and to criminally prosecute any physicians and nurses who perform them. It will allow shopkeepers, restaurateurs, and hotel owners to refuse service to gay customers on religious grounds. It will guarantee that fewer African-American and Latino students attend Ã©lite universities. It will approve laws designed to hinder voting rightsâ¦It will invoke the Second Amendment to prohibit states from engaging in gun control, including the regulation of machine guns and bump stocks.â
None of these outcomes is favored by the majority of American voters. Not even close in most cases. Take Roe v Wade, for example. Polls show that two-thirds of voters nationwide favor keeping government out of peopleâs bedrooms and doctorâs offices. The conservative in me, for example, sees it as a straight-up Fourth Amendment privacy issue.
Regardless of your own or your churchâs view that abortion is a terrible sin, how does government even know when a woman becomes pregnant? Itâs simply nobodyâs business. Nothing could be more private or personal. Where does anybody, much less government, get off making so intimate a decision for anybody else? Itâs not a matter of being pro-abortion, but pro-liberty.
So are we headed for a country where citizens in New York, California and other highly-populated places have dramatically different personal freedoms from those in what H.L. Mencken called the âcow states?â Could be.
Indeed, much of the nationâs political paralysis derives from the outsized power the Constitution gives about 30 thinly-populated states in the U.S. Senate and the Electoral College. As things stand, the average citizen of Wyoming has approximately 70 times more power than a Californian. Exacerbated by an authoritarian president and enshrined in a Supreme Court dominated by Republican ideologues, this undemocratic division of power is tearing at the nationâs foundations.
Senate Democrats can make a great show of resisting a Trump nominee, but the only long-term solution lies in votersâ hands.
IMAGE:Â Pro-abortion rights protesters and anti-abortion protesters jostle with their signs as they demonstrate in the hopes of a ruling in their favor on decisions at the Supreme Court building in Washington, June 20, 2016. REUTERS/Jonathan Ernst