By Bill Adams / UrbDeZine
The circumstances underlying the creation of a strongly conservative Supreme Court for decades may have earned this Court the taint of illegitimacy. Here’s how it went awry.
The “One Person, One Vote” principle is strong in the consciousness of the American Public. It arises from fundamental notions of fairness, equality, and democracy. These notions arise from the spirit of the U.S. Constitution, even if the document itself is less direct in support of the One Person, One Vote principle. In addition to the high-minded ideals of freedom and equality, the U.S. Constitution was born of compromises arising from practical considerations such as wooing slave states into the new union.
Now we have arrived at a perfect storm of factors to subvert the will of the people. It is the result of the distrust of direct democracy embedded in the Constitution combining with undemocratic intent. The majority is ruled by the minority. There has been a massive abrogation of the One Person, One Vote principle. We are now rated as a “flawed democracy,” 21st among democratic countries in the company of Italy, Botswana, and Mexico.
Two of the last three presidents were inaugurated despite the majority of Americans voting against them. President Donald Trump lost the popular vote by more votes than any president in U.S. History. The FBI, CIA, and NSA all agree that he became President with Russian assistance in the form of a covert hacking and misinformation campaign (whether that aid made a difference in the election results is not proven). Whether the President intentionally colluded with the Russians, as we all know, is the subject of an ongoing investigation, which he appears to intentionally obstruct.
Republicans control the House of Representatives despite receiving fewer total votes than Democratic candidates, thanks to gerrymandering (redrawing of Congressional district lines by the party in power in 2010 – Republicans).
The Senate was designed from its inception to disregard the One Person, One Vote principle by awarding two Senators to each state regardless of population. Thus, voters in populous states are disenfranchised. Like the House, more voters in Senate races voted Democratic than voted Republican, but the Republicans control the Senate due to small-population Republican-leaning states having the same number of Senators as large-population Democratic-leaning states.
As a result, two of the three branches of government defy the popular vote. More importantly, such control is tainted with the appearance of impropriety, i.e., it has an appearance of having been accomplished by nefarious means – at least in part.
Now the third branch – the Supreme Court of the United States – is being recomposed to strike down laws supported by the majority of U.S. voters for long into the future. So much for checks and balances. Moreover, Republican Senators employed highly questionable maneuvers to ensure SCOTUS went hard right. Thus, the Court composition will be viewed as accomplished by a gerrymandered Congress, a corrupt President, and the use of questionable tactics. The appearance of impropriety in attaining this coup may taint the Court with an unprecedented air illegitimacy – if it rules in the manner its engineers intend.
For the purpose of this analysis, we need not delve deeply into the theory of a non-partisan Court versus the reality that Republicans favor “conservative” judges who uphold Republican agendas and vice versa for “moderate” or “liberal” judges who may uphold more progressive legislation.
Getting back to the “maneuvers.” First, the Senate Republican Majority Leader Mitch McConnell refused to allow a vote on President Obama’s nomination of Merrick Garland for 11 months. He did this expressly for the purpose of preventing ratification before the 2016 presidential election. Now he shamelessly vows to do the opposite for Trump’s nomination of Brett Kavanaugh before the November mid-term 2018 elections. Second, there was the so-called “Nuclear Option,” in which the Republican majority did away with the decades-long procedural rule requiring 60 votes to ratify a Supreme Court nomination in favor of a simple majority vote. They did this specifically to approve President Trump’s nomination of Neil Gorsuch who would not be able to attain 60 votes.
Now, with the retirement of Justice Kennedy, President Trump’s nomination of Brett Kavanaugh from a short list of conservative favorites appears likely to be ratified with a simple majority of Republican Senators. This will give conservatives not only a majority but a two-justice hard right majority. Moreover, both Judge Brett Kavanaugh and Justice Neil Gorsuch are young, under 55. Thus, SCOTUS’s conservative majority may last for decades, existing primarily to ensure that this generation of conservatives maintains their minority control on future generations.
This circumstance is a recipe for the most loathed Supreme Court since Franklin D. Roosevelt’s early presidency. Like that Court, this Court will likely strike down many attempts at progressive legislation. But this Court will be also be burdened with the taint of illegitimacy, having been appointed contrary to the will of the majority of voters at all levels of federal elections (President, House, and Senate) and with the assistance of procedural maneuvers smacking of unfairness and opportunism. The nominations of two of them by a president who appears destined to be deemed our worst in history will further impair their stature. Trump’s regard among conservative intellectuals is not much better than his regard among liberals of any intellect.
What these circumstances portend for the Court remains to be seen. We are in an era of increasing U.S. inequality and extreme poverty. We are a country with a greater proportion of its citizenry incarcerated than any in the world. Climate change promises to create more and larger natural disasters, along with their human toll. The U.S. is not only losing it’s moral authority both abroad and at home, it is intentionally abdicating it.
The Supreme Court will be viewed by many as imposed by those who created the problems we will increasingly encounter and who ignored the opportunities to avoid these problems. When the Court continues to enforce their policies and ideas long after they have been voted out of power, it may not be able to count on the regard and respect given previous Supreme Courts. What form that diminished respect may take is an open question.
Bill Adams is the founder and chief editor of UrbDeZine. He is also a partner in the San Diego law firm of Norton, Moore, & Adams, LLP. He has been involved with land use and urban renewal for nearly 25 years, both as a professional and as a personal passion.