The Sum of Us

No one should have been surprised. Death is inevitable. But everyone was surprised. This woman wasn’t supposed to die now, throwing everything into disarray. But she couldn’t exactly wait. This was not her choice. But she did make a mess of things.

No, scratch that. The rest of us made a mess of things. Donald Trump made a mess of things. Mitch McConnell made a mess of things. That too was inevitable. This is about who controls the life of the nation, for everyone’s good, or for their own good. She left an opening for whoever could grab control of the future. So one particular week in September 2020 would begin as the New York Times’ Peter Baker and Maggie Haberman explain here:

President Trump and his adversaries mobilized on Sunday for an epic campaign-season showdown over the future of the Supreme Court even as the nation prepared to honor the life of Justice Ruth Bader Ginsburg in an outdoor viewing to be held according to pandemic-era guidelines.

The president’s determination to confirm a replacement for Justice Ginsburg before the Nov. 3 election set lawmakers on a collision course with one another at a time when Congress already has major issues on its agenda, including spending bills to keep the government open past next week and a stalled coronavirus relief package to help millions of Americans left unemployed by the pandemic that has killed nearly 200,000 people.

Donald Trump and Mitch McConnell now don’t give a damn about all the dead and a possible government shutdown and a wave of ten million bankruptcies and the massive homelessness and possible mass starvation that might follow. This is more important:

Undaunted by the prospect of such a volatile fall, Mr. Trump prepared to announce a nominee as early as Tuesday in hopes of pressuring the Senate to ratify his choice before voters decide whether to give him a second term and spoke multiple times with Senator Mitch McConnell, the majority leader. Even as a moderate Republican senator reaffirmed her opposition to such an accelerated timetable on Sunday, others like Senator Lamar Alexander of Tennessee fell in line and it appeared increasingly likely that Mr. Trump may get the votes to proceed, although there were a few holdouts still to be heard from.

Trump could send the name of his nominee to the Senate, formally, in writing, on Tuesday, and McConnell could call for an up-or-down vote of the full Senate within ninety seconds of receiving the paperwork, but timing is everything:

Admirers continued to flock to the Supreme Court building, where they left flowers, candles, signs, newspaper front pages and pictures of the woman who late in life came to be called the Notorious R.B.G. by her fans.

The justice may lie in repose at the court for two days, with a ceremony there as early as Tuesday followed by an outdoor viewing, leaving unclear whether the president would wait to announce his chosen replacement until afterward.

He may not want to appear ghoulish but he loves to appear decisive. When should he shove her dead body aside and once again declare how wonderful he is and name his awesomely wise choice? When was too soon? The marketing campaigns had already begun:

Justice Ginsburg’s death unleashed a wave of fund-raising by both parties, particularly among liberals, who poured forth $100 million through ActBlue, the donation-processing site, by noon on Sunday. Mr. Trump’s campaign began selling “Fill That Seat” T-shirts based on a chant at the president’s campaign rally on Saturday night.

One side chants. The other side reasons:

Former Vice President Joseph R. Biden Jr., the Democratic presidential challenger, on Sunday denounced Mr. Trump’s decision to move ahead with a nomination and appealed to the handful of moderate Senate Republicans to stop the president from making a lifetime appointment that would shift the balance of power on the nation’s highest court without waiting to see the results of the election.

“To jam this nomination through the Senate is just an exercise in raw political power,” Mr. Biden said in a speech in Philadelphia, noting that Republicans refused to even consider President Barack Obama’s nominee after Justice Antonin Scalia died in February 2016, citing the coming election. “I don’t believe the people of this nation will stand for it. President Trump has already made it clear this is about power, pure and simple.”

If Mr. Trump wins the race, Mr. Biden added, then the Senate should consider his choice. “But if I win the election, President Trump’s nomination should be withdrawn,” said Mr. Biden, who has promised to make his first appointment to the Supreme Court an African-American woman. “As the new president, I should be the one who nominates Justice Ginsburg’s successor, a nominee who should get a fair hearing in the Senate before a confirmation vote.”

That’s all hypothetical. There’s nothing he can do at this moment. It may be that Trump should wait, looking at things logically, but Trump is president. He’s not. But then there’s this:

A new poll showed that the American public agrees with him and opposes Mr. Trump’s plan to rush a new justice onto the court. Of those surveyed by Reuters and Ipsos since Justice Ginsburg’s death, 62 percent said her seat should be filled by the winner of the November election, including the vast majority of Democrats and even half of Republicans.

Trump seems to have shrugged. Such people can be ignored. He runs things. They don’t, so all that’s left is this:

The average Supreme Court confirmation takes about 70 days from the nomination and it was not clear how the Senate would proceed with just 42 days as of Tuesday, especially with annual spending bills and the coronavirus relief package still to be addressed. Speaker Nancy Pelosi said on Sunday that Democrats had ways to obstruct the process.

“We have our options,” she said on This Week on ABC. “We have arrows in our quiver that I’m not about to discuss right now, but the fact is we have a big challenge in our country.”

She has no arrows. This had to happen. Ron Brownstein explains why:

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.

This is a structural problem that’s far beyond Nancy Pelosi’s control:

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.

The issue is the legitimacy of the rulings of a court created and maintained by a minority in America for a minority in America:

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.

This, then, is about giving up on majority rule when a new majority emerges:

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.

Majority rule had already been breaking down, and then add this:

The Republican strength in smaller states has produced a similar imbalance in the Senate. 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.

And it’s the same with the Supreme Court:

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.

Yes, nothing much happens in lily-white Maine. That state has two senators, just like California, and states like Maine could control the fate of the nation, or at least try to:

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.

Expect trouble. Brownstein notes that has happened 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.

So expect that:

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.

That may be necessary:

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.

The publication date of that book is February 2021 – when all of this may be moot – but the Washington Post’s E. J. Dionne has a few things to say about this:

The battle over the Supreme Court seat opened by the death of Justice Ruth Bader Ginsburg is not about “partisanship,” or even Republican hypocrisy, although the GOP has displayed bad faith in abundance. It is, finally, a struggle over whether our constitutional republic will also be democratic.

Allowing President Trump and Senate Majority Leader Mitch McConnell (R-Ky.) to complete a judicial coup and install a 6-to-3 conservative majority will be, in both form and substance, a triumph for anti-democratic forces and anti-democratic thinking.

That’s what he calls this:

It’s the American Right that has been willing to abuse power again and again to achieve its goal of imposing a radical approach to jurisprudence that would undercut democracy itself.

There is no liberal analogue to the Shelby County and Citizens United decisions, which changed the rules of the game in anti-democratic ways; no liberal analogue to the Merrick Garland blockade; and no liberal analogue to the lawlessness of Bush v. Gore.

So let’s understand how the words “court-packing” should be used. The real court-packers are McConnell, Trump and conservatives who draw inspiration from what some of them call a “Constitution in exile.”

The Shelby County decision gutted the Voting Rights Act of 1965 and Citizens United ruled that money is free speech and corporations have free speech rights too – they can spend as much as they’d like in any campaign, secretly if they wish. But the “Constitution in exile” people want more than that:

They are expressing nostalgia for the glory days of pre-New Deal judging that gave us separate-but-equal rulings on civil rights and eviscerated the ability of the democratically elected branches of government to protect workers, consumers and the environment.

The theory there is that the Constitution said nothing specific about such matters, like segregation or the environment or consumer rights or anything else, so the government should do nothing for its citizens in these matters. If so, Dionne suggests it is time to do the FDR thing:

If these court-packers succeed in forcing another conservative onto the court regardless of the outcome of the 2020 election, enlarging the court would be a democratic necessity, not payback.

It would be the only way to fight efforts to wreck unions, gut voting rights, tie the hands of regulators and empower plutocrats by voiding laws limiting money’s role in politics.

Oh, wait, that list enumerates what conservatives have already done with just five votes on the court. Imagine the damage they could do with a sixth.

Imagine what’s next:

If you want to know what the misnamed “conservative” legal radicals have in store for us, go no further than their continuing litigation against Obamacare. The right already lost once before the Supreme Court. It lost the fight to repeal the ACA in Congress. It lost it again when the voters used the 2018 midterm elections to reject politicians who wanted to cast the health-care law aside.

But the let-them-use-emergency-rooms conservatives refused to accept the outcome of democratic argument, of deliberation – and of voting. They are now trying to use the courts to void democracy’s writ and flout the wishes of the electorate.

But it’s bigger than that:

Conservatives are trying to lock in minority rule – through the courts, through restrictions on voting and through their temporary majority in the structurally undemocratic Senate – to protect themselves against the will of future majorities in an increasingly diverse country.

That’s what Brownstein was saying, but Dionne goes a step further:

We should not forget how willing the right has been to use all the instruments at its disposal to perpetuate its hold on power. Five conservative justices effectively made Bush president, and the loser of the popular vote went on to appoint two conservatives to the court. Now, Trump, the loser of the popular vote in 2016, claims a mandate to appoint his third justice.

If Trump succeeds with this pre-election gambit, a majority of the court – a court with lifetime appointees from whose decisions there is little recourse – will have been named by presidents who first reached office without winning the most votes.

And we claim to be a beacon of democracy?

We do claim that, and Fred Hiatt thinks he sees why:

One reason this election feels so apocalyptic is that both sides suspect the other of trying not only to win but also to rig the rules so the other side can never win again.

Each side sees a threat to democracy:

The Republican nightmare looks something like this: Democrats gain control of the White House and Congress and end the Senate filibuster so they can work their will. They expand the Supreme Court and pack it with a young left-wing majority. They muscle through statehood for the District of Columbia and Puerto Rico, bolstering their Senate majority. They mount an effort to circumvent or even abolish the Electoral College, empowering California and New York at the expense of small, Republican-leaning states in the heartland.

Meanwhile, the left-wing lock on Silicon Valley enforces censorship and a “cancel culture” that deprives the right even of a platform to complain about their relegation to permanent minority status.

To which the left replies: Oh, please. The digital platforms are merely (belatedly) trying to block your lies and conspiracy theories, not your point of view.

So chill out:

Expanding the court would be entirely justifiable if Republicans fill the current court vacancy on the eve of an election after refusing to even consider President Barack Obama’s nomination of Judge Merrick Garland.

And: If you are accusing us of favoring majority rule, we plead guilty.

Why shouldn’t the popular vote determine who is president?

Why shouldn’t D.C.’s 700,000 residents have representation in Congress just like Wyoming’s 600,000?

And why amplify the Senate’s anti-majoritarianism – with those 600,000 Wyoming residents having equal say to California’s 40 million – with the anti-majoritarian filibuster?

Ah, but they’re worried too:

Democrats have a nightmare of their own, and in many ways the country is already living it. They watched a Republican-appointed majority on the Supreme Court weaken the Voting Rights Act in 2013, paving the way for Republican state governments to disenfranchise poor and minority (read: Democratic) voters in all kinds of ways in recent years.

They see a Republican administration seeking to undermine this year’s census – most recently by trying to suspend the count before it’s complete – which guarantees that poor and minority (see above) voters will be undercounted. That would leave those same voters underrepresented in Congress and state legislatures for a decade.

They see an administration manipulating immigration rules and procedures to block hundreds of thousands of should-be citizens from voting this fall.

And all of that is before you get to President Trump’s preposterous scaremongering about phantom voter fraud, validated by a recklessly partisan attorney general, with the apparent goal of claiming victory even if he loses.

Now, Republicans are preparing to ram through a Supreme Court confirmation that could guarantee a conservative majority for a generation — and be in place to ratify a disputed Trump victory in January.

So, each side is worried sick, but one side has a real problem:

The nightmares are not equivalent. Having yoked themselves to a leader who plays on bigotry and division, Republicans are unable to appeal to a majority of Americans, especially as America becomes more diverse. Rather than expand the tent, they try to keep people out of it, both as citizens and as voters, and to cement in place rules that can preserve their minority reign.

And if Democrats want to use the rules to change the rules, would that be undemocratic? The Founders built an amendment process into the Constitution so the system could evolve.

Today’s Republicans like to see themselves as oppressed and endangered, even as they control the White House, the Supreme Court and the U.S. Senate. They take refuge in aggrievement rather than trying to appeal to a majority – witness their failure even to adopt a platform at their convention last month.

And that has generated a crisis:

Now we are six weeks from an election. This mutual sense of endangerment is perilous, no matter how unequal the reality.

We have long taken for granted something that other countries watch with envy and amazement: a regular, peaceful transfer of power.

That can happen only in countries where the losing leader need not fear revenge and retribution – which is why Trump’s casual, cynical encouragement of the “lock her up” chants was so corrosive.

And it can happen only where the losing side knows it will have a fair chance to compete to regain power in two or four years.

Lose that assurance, or convince yourself that it is at risk, and suddenly the stakes become much higher. Politics goes from hard-fought competition to contest for survival. Previously unthinkable methods become justified and then essential. Rivals become enemies.

And we no longer have a democracy to be envied.

We no longer have a democracy. We voted to end ours in 2016 and this president has already said, over and over, that the results of the coming presidential election will be totally invalid and that maybe it’s now impossible that there will be a valid election in America ever again. Elections are always rigged. Elections don’t work anymore. He seems to be getting ready to say he has no choice but to cancel this November’s election and all future elections and declare himself president for life.

What else can he do? And who is going to stop him? He’s got Fox News and millions of heavily-armed American citizens on his side, and, perhaps, Vladimir Putin and the entire Russian military too. That’s the real sum of us now.