There’s that letter that John Adams wrote to John Taylor in 1814 – “There never was a Democracy yet, that did not commit suicide.”
What? What about what he had helped create? He didn’t see that as a democracy. Nobody in 1814 thought the United States was a democracy, least of all John Adams. His idea of “democracy” was the bloody French Revolution, and even Napoleon, and historically, Athens – “The Athenians grew more and more warlike in proportion as the Commonwealth became more democratic.” Direct democracy was nothing but trouble. He had helped create a “republic” instead – because to Americans, back then, the word “democracy” described a system of “mob rule” – or at best “direct democracy” as in New England “town hall” democracy where all citizens voted directly on every issue without representatives intervening – but that couldn’t be scaled up to a national level. The nation’s citizens have other things to do. They’d elect “representatives” to take care of that for them. A Republic is a Representative Democracy – not mob rule. We, the people, even elect our executive using an Electoral College. Those people actually elect each president. We, the people, don’t. We, the people, advise them, once every four years.
Direct democracy may have been nothing but trouble, but representative democracy hasn’t worked out that well either. Al Gore won the popular vote but George W. Bush was elected president by the margin of Florida votes in the Electoral College, after the Supreme Court, with members appointed by his father, suspended the recount in the state, where the election had been supervised by those appointed by the governor there, Bush’s brother. Al Gore decided not to fight that. That would have torn the country apart. That would have been national suicide. He might have been thinking of John Adams letter to John Taylor – but it happened again with Donald Trump. Hillary Clinton won the popular vote – by almost three million votes. Donald Trump won the Electoral College vote. Hillary Clinton also decided not to fight that. The rules were the rules. We’d have no mob rule here. John Adams said so.
There are other distortions. The Senate, because of its small-state bias – each state, no matter what its population, gets two senators – has a Republican majority despite the fact that more Americans voted for Senate Democrats in 2016 than Senate Republicans – and in the House, with gerrymandering and geography, Democrats need to win the popular vote by around seven points (or as much as eleven points) to take back control there. That’s a long shot. Democrats may never take back the Senate – but the real issue in the Supreme Court. George W. Bush lost the popular vote and got to appoint two justices, to lifetime tenures. Donald Trump lost the popular vote and gets to appoint two justices, so far, to lifetime tenures. That doesn’t seem fair. The first seat Trump filled opened under Barack Obama, but Senate Republicans refused to consider any replacements, hoping to win the 2016 election and see the seat filled by a Republican. Mitch McConnell’s bet paid off. Trump did win that election, though he lost the popular vote decisively, and Neil Gorsuch was named to the Court. That seemed even more unfair. Decisions by the Supreme Court can change everything about life in America for generations – but the rules are the rules. We, the people – the mob – have been left out.
That means that we, the people, the mob, will just have to live with this:
President Trump on Monday nominated Judge Brett M. Kavanaugh, a politically connected member of Washington’s conservative legal establishment, to fill Justice Anthony M. Kennedy’s seat on the Supreme Court, setting up an epic confirmation battle and potentially cementing the court’s rightward tilt for a generation…
The nomination of Judge Kavanaugh, 53, a federal appeals court judge, former aide to President George W. Bush and onetime investigator of President Bill Clinton, was not a huge surprise, given his conservative record, elite credentials and deep ties among the Republican legal groups that have advanced conservatives for the federal bench.
But his selection will galvanize Democrats and Republicans in the months before the midterm elections. Moments after the announcement, the Senate Democratic leader, Chuck Schumer of New York, declared, “I will oppose Judge Kavanaugh’s nomination with everything I have.” Senator Mitch McConnell of Kentucky, who leads the barest of Republican majorities, had expressed misgivings about his path to confirmation, but said he was a “superb choice.”
Justice Kennedy, who is retiring, held the swing vote in many closely divided cases on issues like abortion, affirmative action, gay rights and the death penalty. Replacing him with a committed conservative, who could potentially serve for decades, will fundamentally alter the balance of the court and put dozens of precedents at risk.
Abortion rights gone, affirmative action gone, gay rights gone, and the death penalty is back. The “people” (the mob) support the first three, overwhelmingly, and every other nation in the world, expect for China and Iran and North Korea and Yemen, and Saudi Arabia of course, has abandoned the death penalty as barbaric and immoral or rather pointless – but the rules are the rules. The man who lost the popular vote, overwhelmingly, gets to choose here.
Who is this guy? The Los Angeles Times’ David Savage provides the details:
In the late 1990s, Kavanaugh played a lead role in the aggressive investigation of President Clinton led by independent counsel Kenneth W. Starr. He was an author of the Starr Report, which urged the House to impeach the president for lying about a sexual affair with White House intern Monica Lewinsky.
Senate Democrats are sure to press Kavanaugh to explain his views on investigating and impeaching a president based on allegations of lies and a cover-up, something that could prove uncomfortable for Trump given the investigation underway by special counsel Robert S. Mueller III.
That might be a problem for Trump, but there’s this:
Some conservative activists in recent days had begun a campaign against Kavanaugh, complaining about his past ties to the George W. Bush administration and previous rulings that were not hardline enough for their taste. Many preferred one of the candidates who had worked outside of Washington, despite their less sterling resumes. The other finalists, also federal appeals court judges, were Amy Coney Barrett of Indiana, Thomas Hardiman of Pennsylvania and Raymond Kethledge of Michigan. But lawyers who have worked with Kavanaugh are confident he will be boldly conservative.
“Brett Kavanaugh is courageous, tough and defiant. He will never, ever go wobbly,” said Justin Walker, a University of Louisville law professor who worked as a law clerk for both Kavanaugh and Justice Kennedy. “I predict that he would be a rock-solid conservative in the Alito-Thomas mold,” he said, referring to Justices Samuel A. Alito Jr. and Clarence Thomas.
And there’s this in his favor:
During Starr’s investigation, Kavanaugh took on the task of reexamining the suicide of Vince Foster, a deputy White House counsel and close friend of Bill and Hillary Clinton who had come under fierce attack in the conservative media.
He may still think that Hillary Clinton murdered Vince Foster – she was the one who shot him in the head in the park. Trump would like that, and he must like this:
Years later Kavanaugh changed his mind about his role in the Starr investigation and said presidential investigations were harmful to the country.
In December 2000, with the presidential race between Al Gore and George W. Bush undecided, Kavanaugh joined the Republican legal team that won the fight to stop the ballot recount in Florida.
That’s two things in his favor. Presidential investigations are harmful to the country. The guy who lost the popular vote should win. What’s not to like? He’ll be fine:
Since then, he has written about 300 opinions and compiled a solidly conservative record on a court that has a steady diet of dense regulatory disputes. Kavanaugh was skeptical of several of the Obama administration’s environmental regulations, including efforts to limit greenhouse gases and hazardous air pollutants.
And he dissented in 2015 when the appeals court upheld a revised regulation under the Affordable Care Act involving contraceptives. Although religious employers did not have to provide or pay for the disputed contraceptives, they were required to file a form notifying the government that they were opting out. Dissenting in Priests for Life vs. U.S. Department of Health and Human Services, Kavanaugh said that filing the form would make them complicit, and therefore would violate their rights to religious freedom.
Filing the form would violate their rights to religious freedom? That was his position, and there’s this:
Kavanaugh appears to support broader gun rights under the 2nd Amendment. In 2011, he filed a 52-page dissent when the appeals court, by a 2-1 vote, upheld a District of Columbia ordinance that prohibited semiautomatic rifles and magazines holding more than 10 rounds. The judges in the majority, both Republican appointees, noted that several large states, including California and New York, enforced similar laws.
But Kavanaugh said the ban on semiautomatic rifles was unconstitutional because the weapons are in common use in this country. “As one who was born here, grew up in this community in the late 1960s, 1970s and 1980s, and has lived and worked in this area almost all of his life, I am acutely aware of the gun, drug and gang violence that has plagued all of us. But our task is to apply the Constitution and the precedents of the Supreme Court, regardless of whether the result is one we agree with as a matter of first principles or policy,” he wrote.
Since the Supreme Court in 2008 established a 2nd Amendment right for individuals to have a gun at home, the justices have refused to hear a 2nd Amendment challenge to state laws or local ordinances that restrict the sale of semiautomatic weapons.
Kavanaugh will hear those challenges. Citizens have a right to own and use heavy machine guns or flamethrowers or whatever, but there’s this too:
In 2011, when Obama’s healthcare law was under assault, Kavanaugh dissented when a D.C. Circuit Court panel upheld the law, but only on procedural grounds. He cited the Tax Injunction Act, which said judges should not decide suits challenging a tax provision until the plaintiff has first paid the tax. His view, if upheld, would have delayed a constitutional challenge to the law, and some on the right faulted him for not simply declaring the law unconstitutional.
Conservatives won’t like him for that, or for this:
Late last year, Kavanaugh was in the middle of a fast-moving dispute over whether a pregnant 17-year-old who was held by immigration authorities could leave to see a doctor and obtain an abortion. The Trump administration refused her request and said it did not have to “facilitate” an abortion. After the ACLU sued on her behalf, a federal district judge in Washington ruled she had a right to leave and obtain the abortion. Kavanaugh disagreed and gave the government 10 more days to find a sponsor for the young woman.
But the full appeals court took up the case and reinstated the ruling of the district judge. In dissent, Kavanaugh faulted the majority for creating “a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.”
His stand nonetheless has drawn some criticism in conservative circles because he did not join a separate dissent by Judge Karen LeCraft Henderson. She contended that immigrants in the country illegally had no constitutional rights.
He wouldn’t go that far, even if Trump has gone that far. In his confirmation hearings – the Democrats don’t have the votes stop this process – a number of conservatives might ask him about that. Why does he hate America? But he can mollify them. He can remind them that Hillary Clinton murdered Vince Foster – she was the one who shot him in the head in the park. They’ll forgive him for saying that immigrants in the country illegally actually do have constitutional rights. Hillary Clinton is the answer to everything. Lock her up.
This is a done deal, but Ezra Klein is still thinking about John Adams:
With Kennedy’s replacement, four out of the Supreme Court’s nine justices – all of whom have lifetime tenure – will have been nominated by presidents who won the White House, at least initially, despite losing the popular vote.
There’s nothing necessarily wrong with that. America, for all its proud democratic rhetoric, is not actually a democracy. Until and unless the country chooses to abolish the Electoral College, it will remain not-quite-a-democracy, with all the strange outcomes that entails. Liberals may complain, but the rules are the rules, and both sides know what they are.
Klein, however, thinks things have gone too far:
The Supreme Court’s conservative bloc doesn’t just reflect the outcomes of America’s undemocratic electoral rules; it is writing and, in some cases, rewriting them, to favor the Republican Party – making it easier to suppress votes, simpler for corporations and billionaires to buy elections, and legal for incumbents to gerrymander districts to protect and enhance their majorities.
The Supreme Court has always been undemocratic. What it’s becoming is something more dangerous: anti-democratic.
That’s his thesis, that the Supreme Court is now the enemy of democracy:
Dahlia Lithwick, Slate’s legal analyst, has been covering the Supreme Court for 20 years. She’s the smartest and most humane Court-watcher I know. And she sounds depressed.
“This was the worst year I can remember for voting rights,” she told me. “Folks who are going to go to the polls in 2020 and 2022 and going forward will have even less political power than they had. This conservative, five-justice bloc is distorting electoral politics to make it even harder to be represented.”
What we’re seeing here is an alliance, not a coincidence. Republicans won the White House and the Senate, used that power to appoint judges to the Supreme Court, and the judges they vetted and elevated are making it easier for their patrons to retain power in the future.
Yes, that’s a grim, cynical analysis. But is it wrong?
There is clear evidence that it isn’t wrong:
Consider some of the decisions the Court made just this term:
In a 5-4, party-line opinion, the Court upheld Ohio’s voter purge, which controversially strikes voters from the rolls if they don’t vote for two years and then fail to respond to a mailed questionnaire or vote in another election for four years.
Though the policy was tied up in legal battles during the 2016 election, in 2012, 1.5 million Ohioans were mailed the questionnaires that could lead to them being purged, and more than 1 million failed to respond. To put that in perspective, Trump’s 2016 margin in Ohio was 446,841 votes, and Obama’s 2012 margin was merely 166,214 votes.
The Court’s endorsement of Ohio’s law is expected to reverberate far beyond the Buckeye State. “At least a dozen other politically conservative states said they would adopt a similar practice if Ohio prevailed,” NBC News reported.
And there’s this:
In another 5-4 case, the Court largely refused to strike down a series of racial gerrymanders in Texas that a San Antonio district court said denied Latinos “their opportunity to elect a candidate of their choice.” Justice Sonia Sotomayor’s dissent was blistering. “This disregard of both precedent and fact comes at serious costs to our democracy,” she wrote. “It means that, after years of litigation and undeniable proof of intentional discrimination, minority voters in Texas – despite constituting a majority of the population within the State – will continue to be underrepresented in the political process.”
And there’s this:
In the Janus case, the Court’s five Republicans overruled a 1977 Supreme Court opinion, as well as the laws on the books in 22 states, to gut a key funding source for public-sector unions. If you read the majority opinions in the above cases, you’ll see the Court’s Republican Justices repeatedly suggesting they need to ignore a plethora of relevant facts, comments, and history in order to give due deference to federal and state legislators. That deference dissolved in this ruling, with the Court deciding this question could no longer be left to voters or lawmakers. The decision weakens a powerful Democratic interest group, which is one reason Republicans have fought so hard, for so long, for a judgment like this. The Court, wrote Justice Elena Kagan in an angry dissent, has become “black-robed rulers overriding citizens’ choices.”
And there’s this:
The Court refused to set limits on even extreme cases of partisan gerrymandering, sending multiple gerrymandering cases back down to lower courts, at least for now. These rulings were more technical, and less partisan, but they dashed the hopes of those who believed the Court might finally step in to set limits on how aggressively politicians could choose their voters and harden their majorities. Though the Court held open the possibility of revisiting this issue if brought to them in another way, since Kennedy was the key swing vote, the future of these challenges looks grim.
And, again, these are just cases from the last term.
And there’s history:
A fuller accounting of the Court’s electoral interventions would include the 2000 Bush v. Gore case (which Justice David Souter believed so “crudely partisan” a decision he considered resigning); the constellation of decisions emanating from Citizens United, which have allowed corporations and billionaires to dump literally unlimited amounts of money into elections; and the 2013 gutting of crucial provisions of the Voting Rights Act, which has already had disturbing consequences.
The evidence is overwhelming:
“Whatever mythology existed around the idea that the Court wasn’t pure power and pure winners and losers is gone,” says Lithwick.
The Supreme Court is now the enemy of democracy, or at least the enemy of the people:
Demographers now project American politics will become even less democratic in the coming years. By 2040, 70 percent of Americans are expected to be represented by a mere 30 senators, which means 30 percent of the population will control a 70-vote supermajority in the Senate.
The “mob” will not rule, but that’s not a good thing:
The Supreme Court is meant to be insulated from democracy. It’s not meant to be a partisan tool for undermining democracy. What’s emerging now is a dangerous loop, in which Republicans barely holding onto power manage to keep control of the Supreme Court by any means necessary, and in return, the Supreme Court’s Republican appointees issue rulings to help their party cling to political power.
In the long term, that’s bad for the country’s unity and the Court’s legitimacy.
John Adams never imagined this would happen. He was worried about mob rule, but we now have a different kind of mob, a mob in the Mafia sense. A small group of thugs “took over the joint” to get what they want, all the ordinary people be damned. They don’t matter, and all those ordinary people were never “a mob” in the first place. They just wanted a government of the people. They settled for a republic, a representative democracy, not a direct democracy – but no one expected this. No one expected thugs. Now what?