Reinvigorating Majority Rule

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“Democracy is on the ballot.” — Joe Biden, August 20, 2020

In 2014, two professors made an exhaustive study of 1,779 public issues and how the US decided them. It concluded that the US is an oligarchy of the wealthy and of business interests, which decides vital questions like gun control, health insurance, abortion and taxation as the oligarchs want, not the people. That was six years ago, before Donald Trump ever threw his hat in the ring.

“Democracy,” of course, means rule by the majority. In this 2020 election, pundits have catalogued many ways in which our system deviates from democracy.

The worst legislative offender, of course, is our Senate. Our Founders designed it to empower less populated, rural, agrarian states so they could preserve slavery.

Let me count the ways our Senate contravenes majority rule. First and foremost is sheer malapportionment. Today nine states with a simple majority of our entire population have eighteen senators, or 18% of the Senate’s political power.

Think about that: any combination of nine of the other 41 states can match the senatorial power of the majority of our people; any combination of ten of the 41 can outvote them in the Senate. In the most extreme case, the ten least populated states, comprising less than 2.9% of our total population, could outvote the nine states comprising a popular majority. (In order of decreasing population, the ten least populated states are: New Hampshire, Maine, Montana, Rhode Island, Delaware, South Dakota, North Dakota, Alaska, Vermont and Wyoming.)

The ancient Greeks and Romans, who invented democracy (including representative or “republican” democracy), would consider our Senate an abomination spawned to perpetuate slavery. Yet its gross malapportionment by population has practical consequences today. In one of many, the senators who just confirmed conservative “originalist” Amy Coney Barrett to the Supreme Court represent 48% of our population.

And that’s just the beginning. The Senate’s filibuster is nowhere in our Constitution. Yet today it has morphed from its original purposes—delay and deliberation—into a permanent minority veto of both legislation and Executive appointments. If that weren’t bad enough, the custom of Senate “holds” allows a single senator to block legislation and Executive appointments without even the inconvenience of holding the Senate floor for hours.

Next to this, the Electoral College’s malapportionment is relatively benign. It skews majoritarian political power not by multiples, but only by about five percent. Yet in our history it has produced five presidents [scroll to end for list] who failed to attract a popular majority or plurality. The most recent two were controversial Republicans: George W. Bush and Donald J. Trump, who lost the national popular vote by over half a million votes and nearly 2.8 million votes, respectively.

Notwithstanding these big hits to democracy at the legislative and executive levels, the most egregious departure from democracy may be hiding in plain sight. It’s our Supreme Court.

What could possibly be less democratic than nine people, each appointed and unelected, for life, deciding the most fundamental principles of our Republic for all time? And what could possibly be less conducive to popular rule, and more conducive to hardening of the cerebral arteries, than letting them rule until the days of their deaths—unless and until impeached and removed by a two-thirds supermajority of our grossly malapportioned Senate?

Truly the Supreme Court is the high citadel of minority rule in our system. No wonder the Republican Party sees it as its savior. The Party has a calculated plan to use the Court to entrench its oligarchic rule for generations, even as it becomes a permanent minority party nationwide. Short of a second civil war or a new constitutional convention, there’s no legal way to shake the Court’s rulings—no matter how impractical or contrary to the people’s will they may be.

I know, I know. Our Founders hoped the Supreme Court would provide a refuge of Reason, apart from the hurly-burly of politics, that would protect the fundamental principles of our government in times of stress. But it hasn’t turned out that way, has it? If Justice Roberts still believes that justices only “call balls and strikes” like good umpires, he must be the only one in our country who does. Everyone else seems to see the Supreme Court as a juicy political prize, and all are acting accordingly.

And why not? In the past ten years the Supreme Court has unleashed the Hounds of Political Hell in four ways. First and most important, it has let money not just talk, but rule. By likening money to “speech”—an analogy specious, impractical and anti-democratic on its face—its 2010 decision in Citizens United has given wealthy people and big corporations leeway to tilt the political playing field through “soft” bribery and propaganda.

So in a closely divided nation, money has displaced Reason in politics. Even ActBlue—the Democrats’ online vehicle for small contributions—reports raising over $7.5 billion since 2004. And no one appears to be keeping track of the big, dark money that flows offline.

In its second most consequential act against democracy, the Court in Shelby County v. Holder (2013), struck down key sections of the Voting Rights Act of 1965, which helped end Jim Crow. The Court killed those provisions on the basis of general principles of “federalism” and “states’ rights.” As a result, the Southern States, which had been the law’s target, began almost immediately to suppress the votes of Democrats and minorities. They used such means as voter-roll purges, identification requirements, witness requirements for absentee ballots, and limiting polling places. These tactics continue today, and they have spread beyond the South.

The Court’s third most consequential sin against democracy involved another error of commission. Just days ago, it affirmatively allowed Texas to proceed with mail-in voting while providing only one drop box per county. Harris County, containing Houston, has 4,713,325 people. Loving County has 169 people. So voters in Loving County have 7,713,325/169 = 27,880 as much time, on average, as voters in Harris County to drop in their ballots. Is this “equal protection of the law,” or is it geographical discrimination? Does it matter that Harris County is one of the most racially and ethnically diverse counties in America?

The Court’s fourth and final sin against democracy was an error of omission. In three companion cases decided last year, the Court refused to intervene in what it called “[e]xcessive partisanship in districting [whose] results . . . reasonably seem unjust,” i.e., extreme gerrymandering. In so doing, it gave partisan pols permission under our Constitution to arrange things so some voters matter more than others.

Does anyone seriously think that our Founders—who worked so hard to create checks and balances at the federal level—would have done nothing about today’s Wisconsin, in which Republicans can win 60% of the statehouse seats with 48% of the vote? So much for “originalism.” (Our Founders foresaw the advent of political parties, but most of them feared parties only for fomenting “faction” and neglecting the general welfare.)

One question in this election is not just whether the Supreme Court’s recent rulings have injured democracy—at least if democracy means one person, one vote. The evidence against the Court on that point is overwhelming. The question is what we can do about it, and about our other structural impediments to democracy.

Short of a second civil war or a new constitutional convention, there’s no general remedy for our grossly malapportioned Senate. Our Constitution explicitly states, in Article V, that “no State, without its consent, shall be deprived of its equal Suffrage in the Senate.” But a simple majority in the Senate can, at least, dispose of the gross assaults on democracy made by the filibuster and individual senators’ “holds.” Our constitution’s Article I, Section 5, says that “Each House may determine the Rules of its Proceedings[.]” So a Democratic majority in the Senate could change those rules, as a first step in restoring legislative democracy.

The Electoral College is a tougher nut to crack. Eliminating it would require a constitutional amendment, which three-fourths of the states must ratify. A quicker expedient might be the National Popular Vote compact, under which individual states’ legislatures agree to cast their Electoral College votes in accordance with the national popular vote.

The advantage of this approach is that it avoids involvement of the federal Congress and its malapportioned Senate. Already 16 states with 196 electoral votes have signed up; by its terms, the compact becomes effective when states with 74 more electoral votes sign up. (The 270 resulting electoral votes are the minimum necessary to elect a president, so no president could be elected without the support of the compact, i.e., without winning the national popular vote.) As the compact comes close to self-triggering, perhaps targeted economic boycotts of small, recalcitrant states could push it over the top.

Yet besides the Senate, our biggest obstacle to democracy is our own Supreme Court. While striking down vital provisions of the Voting Right Act of 1965, it left Congress free to re-enact them, or something like them. Congress should do that ASAP, leaving it to the Justice Department to review and countermand all the myriad unforeseeable ways that bigots and Republicans may concoct to suppress the vote.

But what about the cases like Citizens United, which hobbled Congress’ power to keep money out of politics? More generally, what can be done to force the Supreme Court to let our political branches protect and renew the most basic rules of democracy since ancient Greece and Rome: majority rule and one person, one vote?

In the hope of taking the White House and both Houses of Congress, Democrats recently have discussed a number of proposals. They include: (1) expanding the Court, (2) eliminating life tenure, (3) restricting the Court’s appellate jurisdiction, and (4) restricting the Court’s subject-matter jurisdiction.

Of these expedients, only (2) would require amending the Constitution. Article III, Section 1, says that “Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour[.]” This means essentially life tenure, except if judges are impeached and removed. The Founders suggested that life tenure would make judges free from improper influence, including political influence.

In contrast, expanding or contracting the Court or limiting its jurisdiction would not require a constitutional amendment. There is actual historical precedent for changing the number of judges. And Except for “Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party,” our Constitution gives “the supreme Court . . . Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Article III, Section 2 (emphasis added). So Congress can, by making exceptions, whittle down the Supreme Court’s jurisdiction at will.

In comparison, eliminating or adding judges is a bad idea. Cutting one or more would inevitably become personal. It would arouse champions or accusers whether judges are eliminated by name or by some other, supposedly neutral criterion. The resulting brouhaha would take everyone’s eyes off the ball: the issue is not particular judges’ transgressions against democracy, but the Court’s. As for adding judges, its effect could be reversed by the next Congress adding yet more, if captured by the opposing party. The resulting expansion after expansion would not just be unseemly; it could quickly get out of hand.

The crux of the issue is not personal political or ideological biases, although they surely exist and the Republicans seem to be counting on them. The issue is simply that the Court ought not to meddle in the structure of our democracy or our political branches’ attempts to expand or protect the franchise. And it certainly oughtn’t to do so in a way that makes it harder for anyone, or any class of people, to vote. Congress could stop the Court from doing that simply by limiting its subject-matter jurisdiction.

The alternative of regulating appellate jurisdiction also deserves some discussion. A recent op-ed by a law student raised it. At present, the Supreme Court decides what few cases out of many it will hear, by granting review in a process called “certiorari (Latin for “to be made more certain.”) This procedure allows the Court to determine its own jurisdiction by picking the few cases each year it deigns to decide. An alternative is to let panels of lower appellate court judges pick those cases, thereby broadening the decision makers and diluting any ideological bias on the Court.

Yet this would be a solution to an entirely different problem: that many important cases never get the attention they deserve from the Supreme Court. The crying problem today is different. First, the Supreme Court is meddling in the basic structure of our democracy, i.e., how, when and whether can people vote. These questions are essentially political and practical, not legal, and therefore outside the Court’s proper purview. Second, when the Supreme Court cites the Constitution in making a political and practical decision, such as about money in politics, it can leave no room for reversal or change by the people’s representatives. In those cases the Court literally usurps the political and democratic process—and potentially for all time. That’s a power for which its judges are neither elected nor trained.

At the end of the day, the Constitution is not the exclusive purview of the Supreme Court. Its preservation involves all three branches of our government. Before assuming office, our president and every member of Congress take an oath to preserve, protect and defend it.

One of the strongest Supreme Court precedents on this very point doesn’t get much press nowadays. But it should. In the middle of our bloody part in the Korean War, an impending strike of steelworkers threatened to shut down our war effort. President Harry Truman ordered his Secretary of Commerce to seize and operate the steel mills in order to stop the strike and protect our war effort. The issue reached our Supreme Court in the case of Youngstown Sheet & Tube Co. v. Sawyer.

The Court ruled 6-3 that, without authorizing legislation by Congress, President Truman lacked legal authority to seize private property, however noble or important his purpose may have been. But today’s jurists don’t focus on the rather conclusory majority opinion. Instead they focus on the concurring opinion of then Justice Robert H. Jackson—the same judge who had presided over the Nuremberg Trials of Nazi war criminals. He was a modern-day King Solomon.

Justice Jackson’s concurrence was about presidential power. But his words are worth quoting verbatim, as innumerable jurists have done for three generations:

“When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth), to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power.” [Footnote omitted.]

This was precisely the situation in Shelby County v. Holder. Congress had, through the Voting Rights Act of 1965, expressly delegated authority to the Executive Branch to review changes in voting rights and procedures in Southern states with a long history of disenfranchising Black people. Executive power was, in Justice Jackson’s language, “at its maximum.” Yet the Supreme Court, citing the passage of time and finding changes in circumstances and the assumed rights of states, presumed to strike down key sections of the Voting Rights Act as having outlived their usefulness. Not only did the Court disempower both the Executive Branch and Congress, it presumed to usurp the fact-finding and its prescriptive functions of both political branches.

This was not just a gross abuse of judicial authority—the elevation of nine unelected jurists over our entire Congress and Executive Branch. For a Court on which some members had consistently attacked so-called “judicial activism,” it was a case of breathtaking hypocrisy.

Yet another thing made this particular transgression and hypocrisy especially egregious. We Americans had fought a four-year war—the bloodiest in our entire history—to make Black people full citizens with voting rights. The Fourteenth Amendment came out of that war. Under its first section, “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The broad phrase “any person” of course includes Black people, who were its original and primary beneficiaries.

If all this were not enough, Section 5 of the Fourteenth Amendment gives Congress the power to enforce it “by appropriate legislation.” So not only did the Shelby County v. Holder Court usurp both Congress’ and the Executive’s fact-finding functions, for which both branches are more expert, have more staff and have stronger constitutional authorization than the Supreme Court. Not only did the Court presume to countermand Executive action that had general congressional authorization in the Voting Rights Act of 1965. It also presumed to countermand specific congressional authorization under the Fourteenth Amendment, which Congress had adopted before the States ratified it, and which passed for the very same purpose (Black people’s voting rights) that Congress reinforced a century later. To paraphrase Nobel Laureate Bob Dylan, how many times must Congress act before they call it a law?

For this mind-boggling transgression of Executive and congressional authority, the proper remedy is not tinkering with Supreme Court’s membership. The proper remedy is depriving it of subject-matter jurisdiction over voting-rights cases.

That’s what a Democratic Congress should do if elected this November. There is no more sacred duty of a democratic government than protecting the people’s right to vote, and the Court has shown itself entirely unable or unwilling to fulfill that duty. All the applicable law supported widening the franchise. Yet the Court used facile and specious reasoning, plus its very own fact-finding, to permit states to narrow it, contravening congressional legislative and constitutional acts over more than a century.

Another chunk of subject-matter jurisdiction that ought to be removed is abortion. I have written an entire essay on the issue’s near-infinite complexities, which I won’t review here. But four practical points are worth making. First, our Constitution does not mention abortion, nor (to my knowledge) do our Federalist Papers. So there is little but imagination and fantasy on which an honest “originalist” can base a judicial opinion on the subject. Our Founders simply didn’t think about it.

Second, the entire effect of the Supreme Court’s treatment of the subject since Roe v. Wade in 1973 can be summed up as follows: the nation is now divided into states that permit abortion with few restrictions and those that criminalize only certain kinds of abortion. So we have a patchwork of state laws, but nowhere is abortion entirely criminalized. Third, the issue has, for over two generations, provided an enormous electoral distraction, while so-called “conservatives” have crushed the American working class, busted its unions, allowed its incomes to stagnate, allowed its jobs and factories to be shipped abroad, and let economic inequality overgrow heights attained only in our First Gilded Age.

In other words, abortion has been one of the chief means by which the oligarchs and their political party have kept workers’ eyes off the ball and have stolen the substance of this nation from under their noses. Enough already! Nearly half a century of fighting over Roe v. Wade has produced enormous heat, relentless distraction, and little practical change in its principal subject, the availability of a medical procedure. Progress has been minimal and pyrrhic for both the “pro choice” and “pro life” sides (both of which are misnomers). So let Roe v. Wade, with all its existing exceptions and caveats, continue as precedent, but get the Supreme Court out of the abortion business. Let the patchwork continue, if at all, in the state legislatures, subject to the existing command that women have some right to an abortion in some poorly defined way. Congress can do that with simple majority legislation, if it chooses.

No doubt there will be other subject matter on which the Supreme Court ought not to tread. But that—not personnel or size—is where its correction should lie. We have a nine-member Court: a nice odd number to avoid indecision in most cases (except where one or more members is absent or recused). Nine is a large enough number to encourage a variety of thinking while not too large to foster collegiality. In contrast to changing the Court’s membership, narrowing its subject matter is easily reversible, without the need for dismissing justices or confirming new ones.

The Supreme Court is supposed to be our “least dangerous branch.” But it is also our least expert. It has no staff but its judicial and administrative clerks. By and large, it knows no science, except what litigants recite to it in briefs. It knows only the law and the limited means of textual interpretation taught in law schools and used in courtrooms.

So the Court is an ivory-tower institution dealing in verbal abstractions. It’s the farthest of our three branches from the vicissitudes of daily life and politics. Its justices’ life tenure only makes them more removed from daily life. When it strays beyond its proper competence, we should not change its basic structure nor its role in our constitutional system. Instead, we should chastise and correct it by narrowing its jurisdiction.

As intelligent men and women, its members will no doubt take the hint. The narrowing is easily reversible by legislation if they do. Then majority rule can prevail in Congress and (by election) our executive, leaving the Court to its narrow task of determining what the law that elected officials make says and (rarely) when that law contravenes clear and non-controversial constitutional norms.

Endnote on Gerrymandering. Careful readers will note that the foregoing post has not yet provided a solution for the Supreme Court’s refusal to correct even extreme gerrymandering. If left unchecked, both parties’ temptation to gerrymander could ultimately foster deviation from majority rule as much or more than voter suppression. Failure to recognize this slippery slope is yet one more example of the current Court’s refusal to see real cause and effect as wise judges ought.

There are possible remedies for gerrymandering, but they are necessarily more complicated than depriving the Supreme Court of subject matter jurisdicition. The reason is that, in allowing even extreme gerrymandering, the Supreme Court has failed by refusing to act, rather than by acting badly. Nothing in the Constitution allows Congress to dictate the Court’s decisions in cases that come before it; that would violate the separation of powers.

Nevertheless, Congress itself could provide a solution in three steps. First, it could use its general Article III authority to create specialized inferior courts to handle cases of gerrymandering. Second, it could deprive the Supreme Court of appellate jurisdiction over those cases. Third, it could use its constitutional authority under Section 1 of the Fourteenth Amendment to keep States from depriving “any person” of equal protection under the law. Specifically, it could promulgate general legal standards for states’ congressional and local districts to insure a reasonable approximation of “one person, one vote.“ Alternatively, Congress could set up a national, nonpartisan commission to govern redistricting and subject its work to judicial review only by special courts that Congress established for that purpose.

The sad thing is that all this is really deva vu. Section 2 of the Fourteenth Amendment, ratified in 1868, anticipated that Southern and other states might play tricks in disenfranchising voters in both state and federal elections. It even provided a remedy: reducing the “basis of representation” by the ratio of the disenfranchised to the enfranchised.

Section 2 covers disenfranchisement of “any male inhabitant” of a state over the age of 21. It is backed up by Section 5, which gives Congress general power to “enforce, by appropriate legislation, the provisions” of the Fourteenth Amendment, including Section 1 and Section 2. Congress could thus cite the Fourteenth Amendment as empowering it to reduce both a state’s representation in the federal House, and unfairly advantaged districts’ representation in the state legislature, in proportion to the disenfranchisement of “inhabitants” of the state. (Although its language is not entirely clear, Section 2 arguably falls short of a remedy by reducing a state’s inalienable representation in the federal Senate.)

The point here is not that the Fourteenth Amendment’s Section 2 is the best way to proceed. The point is that the Fourteenth Amendment, whose Section 1 categorically prohibits any state from denying equal protection to “any person,” provides alternative ways to remedy disenfranchisement by any means, including gerrymandering. (The Nineteenth Amendment, which gave women suffrage, and the Twenty-Sixth, which lowered the voting age to 18 in both federal and state elections, ought to erase the age and gender limitations of Section 2 as originally adopted.) Today’s Democrats, who have every reason in morality and politics to provide a remedy for both disenfranchisement and gerrymandering, ought to make doing so one of their first priorities if this election goes well for them.

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