Has the Supreme Court become the enemy of democracy? The very question jars the senses. How can someone even make such a suggestion?
My answer is that it’s time to face a sad truth about twenty-first century America. The Court is letting the people of America down.
You may question my use of the word “truth” and say, “That’s just your opinion.” I concede the point but consider the evidence.
In 2010, in Citizens United v. Federal Election Commission, the Court decided that money equals speech and, therefore the government cannot impose a limit on the size of political contributions by corporations and unions. The ruling took free speech where it didn’t have to go, thereby magnifying the political power of the rich. The Court assured us that public disclosure would provide sufficient accountability. More on that subject below.
In 2013, in Shelby County v. Holder, the Court killed Section 5 of the Voting Rights Act of 1965, which subjected certain states to federal approval before they could change their election laws. But, according to Chief Justice Roberts, the passage of time had cleared up the problem the law was designed to fix, so preclearance was no longer needed. Based on that questionable premise, which ignored both the contrary evidence and Congress’s reaffirmation of the Act, the Court concluded that Section 5 was no longer constitutional.
Then, in 2019, the Court continued its assault on voters’ interests, this time by refusing to adjudicate the constitutionality of partisan gerrymandering. According to Rucho v. Common Cause, the practice of allowing the party in power to use the redistricting process to stay in power, even if a majority of the state’s voters disagree, is “incompatible with democratic principles,” but the Court can’t do anything about it because the issue is not “justiciable.” How can that be? The Supreme Court has the power to decide what issues it should and should not take up, and a fundamental rule of democracy is that the electoral majority decides. If gerrymandering is beyond the Court’s reach—according to the Chief Justice it “is not law”then why wasn’t the existence of segregated schools beyond the Court’s reach in the 1950s? Would today’s Court tell Oliver Brown and his daughter, Linda, who sued the Topeka Board of Education, “that’s not law?” The question is not frivolous, since both school segregation and gerrymandering impose disproportionate burdens on members of minority groups.
The Citizens United, Shelby County, and Rucho cases were all 5-4 decisions. But then Justice Ginsburg died in late 2020, and the appointment of Amy Coney Barrett enlarged the “conservative” majority. Thus in 2021, by a 6-3 vote in two cases, the Court continued its march against democracy.
Americans for Prosperity Foundation v. Bonta overturned a California law requiring disclosure to the state attorney general of the names of large donors to non-profit organizations, including political action committees. The law had a legitimate purpose, but the Court said you can’t do that because freedom of association under the First Amendment protects anonymous giving.
Never mind that giving money to a political group isn’t “association,” much less “assembly” which is the word the First Amendment uses. If it were, then gerrymandering would be “law” because it dilutes the impact of a citizen’s vote for the party with which he or she chooses to “associate.” Apparently Citizens United’s assurance that disclosure of donors’ names provided a safeguard wasn’t meant to be taken seriously or maybe, like federal review of election law changes, it has somehow become unnecessary. Remarkably, the Court compares donors’ secrecy to protecting the right of NAACP members to remain anonymous.
2 The other 2021 case, Brnovich v. Democratic National Committee, rejected a challenge to Arizona laws that invalidate ballots cast in the wrong precinct and limit who can deliver absentee ballots. The fact that these laws have a disparate impact on minority voters, the very evil Section 2 of the 1965 Voting Rights Law was designed to combat, was not enough to persuade these six Justices.
When laws protect the right to vote—there is no better example than the Voting Rights Act of 1965—the Court should bend over backwards to carry out Congress’s intent. Instead of seizing the opportunity to cast a lifeline to a drowning democracy, the majority now inhabits a “law-free zone,” as Justice Kagan wrote in her Brnovich dissent.
These political contribution and voter restriction laws are the suspenders to the partisan gerrymandering belt. Taken together, they are a perfect way to defeat the will of the majority. It happens that Republicans are the ones driving the anti-democratic bus, but election fairness and voter equality are not partisan issues. The Supreme Court’s refusal to maintain election law guardrails and enforce electoral speed limits is making America a less perfect union.