Fight over Ginsburg succession poses stark question:
Can majority rule survive in US?
Analysis by Ronald
Brownstein
Updated 5:05 PM ET,
Sun September 20, 2020
(CNN)A Republican vote to replace the late Supreme Court Justice Ruth Bader Ginsburg before
the next presidential inauguration could deepen the pressure on majority rule
that is already threatening to engulf all elements of America's political
system.
If the Republican-led Senate confirms a nominee from President Donald Trump before
January, it would mark the third time a GOP-majority Senate that represents
well below half of the US population -- allocating half of each state to each
senator -- would elevate a justice chosen by Trump, who lost the popular vote,
to the Supreme Court.
Two of the five currently serving
Republican-appointed justices were nominated by President George W. Bush, who also initially lost
the popular vote. The final one, Clarence Thomas, was approved by senators who
also represented less than half of Americans.
These incongruities would be enormously
deepened if Trump and/or the GOP-led Senate loses in November and confirms the
nominee anyway. That would raise enormous questions about the Supreme Court's
legitimacy and create pressure on Democrats to enlarge the court if they win
unified control of government, a step that would underscore how the
action-reaction cycle of contemporary political combat is creating perhaps the
greatest strains on the American governmental system since the Civil War.
To a wide array of Democrats and other
critics, the possibility of a GOP President and Senate that each has won
support from less than half the country locking in a lasting Supreme Court majority
crystallizes a much larger dilemma: how quirks in the constitutional system are
allowing Republicans to repeatedly wield power in Washington even when more
Americans vote for Democrats.
Whether majority rule survives in American
politics "is the fundamental question of our time, when you layer on the
fact that we are determining whether a multiracial democracy can exist,"
says Heather McGhee, former president of the liberal research and advocacy
group Demos.
The overall tension on majority rule is growing
because the Republican dominance of smaller, predominantly White and heavily
Christian states has allowed the party to benefit from elements of the
Constitution that amplify the influence of small states -- particularly the
two-senator-per-state rule and the Electoral College.
From George Washington through Bill Clinton,
only three presidents won the Electoral College while losing the presidential
popular vote. But it's now happened twice in the past five elections, each time
to the benefit of Republicans; Republicans have controlled the White House 12
of the past 20 years despite winning the popular vote only once in the five
presidential elections since 2000.
If Trump wins a
second term in November, it will almost certainly create another divergence,
since he has a much better chance of squeezing out an Electoral College victory
than of winning the popular vote, where polls consistently show him
trailing Joe Biden by 7 percentage points or more.
The Republican strength in smaller states has
produced a similar imbalance in the Senate. As I noted recently, if you assign half of each state's
population to each senator, "while the GOP has controlled the Senate for
about 22 of the past 40 years, Republican senators have represented a majority
of the nation's population for only a single session over that period: from
1997 to 1998."
Today the 47 Democratic senators represent
almost 169 million people, while the 53 Republican senators represent about 158
million, according to calculations by Lee Drutman, a senior fellow at the think
tank New America. The disparity is even greater when measured by votes: The senators in the current Democratic minority won 14 million more
votes than those in the Republican majority, Molly Reynolds, a
senior fellow in governance studies at the Brookings Institution, has
calculated.
A recipe for conflict
These dynamics are imprinted into the Supreme
Court's DNA. Both of Trump's Supreme Court nominees, Brett Kavanaugh and Neil
Gorsuch, were confirmed by senators representing less than 45% of the population.
John Roberts and Samuel Alito were nominated by Bush, who initially lost the
popular vote (though he did win a narrow majority in 2004, before he made those
nominations in his second term.) The senators who
confirmed Thomas, nominated by President George H.W. Bush, also
represented less than half the population.
The situation is even more combustible because
both Trump and the Republican senators who will decide whether to confirm a
justice before the next Congress overwhelmingly represent the parts of America
least touched by the convulsive demographic, social and even economic changes
remaking American life. Especially if a sixth Republican-appointed justice
joins the bench, the conservative court majority could easily last until well
after 2030 because the oldest GOP-appointed justices, Thomas and Alito, are
only 72 and 70, respectively. That means a court chosen and confirmed by
Republicans elected predominantly by White voters, a clear majority of them
Christians, could write the rules for years while both of those groups are
continually shrinking as a share of society.
That could be a recipe for explosive conflict
through the coming decade between the priorities of rising generations that
compose a growing majority of the population and a court chosen and confirmed
by a Republican political coalition that no longer can regularly command
majority support from voters. Those confrontations could unfold across a wide
array of issues, with a conservative court rejecting or constraining
legislation or executive branch actions popular with the emerging generations
on questions ranging from climate change and racial equity to women's rights,
gay rights, access to voting -- and perhaps most immediately, access to legal
abortion.
Ben Wessel, executive director of NextGen
America, a group that organizes young people for progressive causes, predicts
that demands from younger generations to change the structure of the court will
grow irresistible if a conservative majority repeatedly strikes down measures
reflecting their concerns.
"I see a wave of young people being born
into social movements who recognize that you have to take every institution in
this country on and try to shape it in your image, whether it's Congress or the
White House or the Supreme Court or your local police force," he says.
"This is not a generation that says I will play by the rules and things
will be OK. It's a generation that says: I will rewrite the rules so they work
for me."
The demographic distance is profound between
the young generations rising to prominence and the political coalition that has
empowered Republicans to create, and now potentially cement, a conservative
Supreme Court majority.
As demographer William Frey recently calculated, the diverse
generations of Americans born after 1981 -- millennials, Generation Z and the
younger cohort behind them -- now represent a majority of the nation's
population. Because many of those young people aren't yet eligible to vote --
and others don't vote even though they are eligible -- their political
influence lags behind their presence in the population; but in 2020,
millennials and Generation Z combined, for the first time, will equal baby
boomers and older cohorts as a share of eligible voters, and in 2024 they are
certain to exceed them as a proportion of actual voters, according to
projections by the nonpartisan States of Change project.
Pressure to enlarge
the court
These generations are dramatically changing
the face of America. As Frey notes, young people of color make up about 45% of
millennials, nearly 49% of Generation Z and represent a 51% majority of the
younger generation behind them. Comparable change is evident on other fronts.
Among adults younger than 30, only 29% identify as White Christians, well below
the nation overall (around 43%) and only half the number among the nation's
seniors 65 or older, according to data from the nonpartisan Public Religion
Research Institute. They are also the best-educated generations in American
history.
Trump and the Republican-led Senate, however,
were put in power almost entirely by the parts of the country most insulated
from these changes -- states with few immigrants, more White Christians and
relatively fewer college graduates. Fully 26 of the 30 states Trump won rank
among the 30 states with the smallest share of immigrants, according to census
data; those same states elected 45 of the 53 Republican senators.
Likewise, 43 of the 53 Republican senators
were elected by the 29 states in which White Christians, according to data from
the Public Religion Research Institute, compose at least 47% of the population;
those same 29 states accounted for 25 of the 30 states that Trump carried last
time. The patterns are similar when ranking states by their share of college
graduates. After this election, Republicans may hold none of
the 24 Senate seats in the 12 states with the most such graduates.
If Trump jams through
a nominee to replace Ginsburg, there will be a lot of momentum among Democrats
to do something like add a seat. I think that a lot of Democrats recognize
adding seats to the court is not something they want to talk about or do; but
if Republicans do this, it sort of rips the mask off, and action could lead to
reaction.
MICHAEL WALDMAN, PRESIDENT OF THE BRENNAN CENTER FOR
JUSTICE
In the past, this sort of divergence between
the court and the country has occasionally proven explosive. Because justices
serve for many years, as I've written, the court is always backward-looking in the
sense that its balance of power is inexorably linked to the choices that voters
made in presidential and Senate races years before. Some of the most incendiary
moments in the court's history have come when a court majority forged in an
earlier era blocks the agenda of a party ascending in a later one.
In the 1850s, for instance, the new Republican
Party was emerging as the nation's dominant electoral force as the voice of
voters in the industrializing North who opposed slavery's expansion. But at
that point, seven of the Supreme Court's nine members had been appointed by
earlier pro-Southern Democratic presidents who had dominated the previous era
in American politics; that court, led by Chief Justice Roger Taney, sparked
outrage among voters in the emerging majority when it repeatedly favored the
interests of Southern slaveholding states, a pattern that peaked when the
court's Dred Scott decision in 1857 threatened to allow slavery in all of the
territories.
Something similar recurred in the 1930s. At
that point, seven of the nine justices had been appointed by Republican
presidents, reflecting their dominance of national politics from 1896 through
Franklin D. Roosevelt's first election in 1932. That court invalidated a
succession of Roosevelt measures that expanded the role of government to combat
the Depression and reflected the priorities of his "New Deal
coalition," which would dominate American politics into the 1960s. That
prompted Roosevelt's highly controversial proposal in 1937 to add more justices
to the court -- or "pack the court." While Congress didn't approve
Roosevelt's plan, enough conservative justices shifted their views (or retired
in the years ahead) to eliminate the court as an obstacle to his agenda.
If Democrats can't stop Senate Majority Leader
Mitch McConnell and Trump from confirming a Ginsburg replacement but they win
control of the White House and the Senate in November, the party will almost
certainly face the most pressure at any point since 1937 to seriously consider
enlarging the court.
"If Trump jams through a nominee to
replace Ginsburg, there will be a lot of momentum among Democrats to do
something like add a seat," predicts Michael Waldman, president of the
Brennan Center for Justice at New York University. "I think that a lot of
Democrats recognize adding seats to the court is not something they want to
talk about or do; but if Republicans do this, it sort of rips the mask off, and
action could lead to reaction."
Frustration is
building
A court chosen by the parts of America least
affected by demographic change that writes the rules for the most
demographically diverse population in the nation's history is only one measure
of the strains emerging between the enduring structures of American democracy
and the rapidly changing nature of its population. There's a strong racial
dimension to this tension, because the elements of the system that benefit
smaller and more racially homogenous states are one important reason why
Republicans have been able to maintain so much power in Washington, even though
they still rely on Whites for about 90% of their votes in a society that is
now about 40% non-White and heading toward majority minority status sometime
around 2045.
Critics like McGhee see in the Republican
actions for at least the past decade -- from passing multiple state laws that
make it tougher to vote to Trump's repeated attempts to tilt the decennial census toward GOP
advantage to McConnell's refusal to consider President Barack
Obama's Supreme Court nominee in 2016 and this drive for a last-minute court
appointment -- a concerted effort to maintain power even if they can't attract
majority support in a society that's demographically evolving away from them.
For conservatives, "this is absolutely
the core question: How do you preserve White male rule when it's incompatible
with democracy?" says McGhee, author of the upcoming book "The Sum of
Us," which examines the costs of racism to American society.
Locking in a conservative Supreme Court
majority that could last at least another 15 years -- perhaps even in defiance
of an intervening election in a little over six weeks that gives Democrats
unified control of government -- would provide Republicans enormous leverage on
the direction of national life even if demographic change sentences it to
minority status in most elections over the coming decade.
But if Democrats can build a sustainable
political majority from the growing groups that now lean toward them -- younger
generations, people of color and college-educated Whites, all of them centered
in major metropolitan areas -- it seems unlikely those groups will quiescently
accept existing rules that allow a preponderantly White, Christian and
non-urban minority to block their agenda.
If Democrats win unified control of government
in November, the pressure to reconsider those rules would likely begin
immediately with demands to end the Senate filibuster, which empowers small states; ending the filibuster in turn could position Democrats to
overhaul voting laws, pass a new Voting Rights Act, add the District of Columbia and possibly Puerto Rico as
states, and even potentially enlarge the Supreme Court (especially if the court
strikes down some of those other initiatives).
All of those fights would be enormously
controversial, yet they might be only the overture for the sustained struggle
ahead between a Republican coalition determined to maintain power and a
Democratic coalition increasingly frustrated that it has not obtained more
power despite often winning more votes in recent years.
This is not the first time the nation has been
riven by division between what America is becoming and what it has been. In the
1850s, America faced a similar confrontation -- an
"irrepressible conflict" -- between the national
majority coalescing in the North that wanted to curtail slavery and Southern
interests that had successfully protected slavery for decades, even though the
South made up a steadily shrinking minority of the nation's population.
The 2020s might see the most prolonged conflict
since then between a rising majority and an entrenched minority that is trying
to fortify its power by any means necessary against the demographic waves that
are mounting against it.