Neil Gorsuch, the man who occupies a seat on the Supreme Court because Senate Republicans held it open until Donald Trump could fill it, is on a bit of a victory tour.
Last week, the staunchly conservative judge spoke at the University of Louisville’s McConnell Center — as Senate Majority Leader Mitch McConnell (R-KY), the center’s namesake and the man who orchestrated the strategy that placed Gorsuch on the Supreme Court, sat just a few feet away. McConnell, who also introduced Gorsuch, told the audience that he “could not have been happier” when Trump named Gorsuch to fill the seat the senator held open for more than a year.
On Thursday, Gorsuch will speak to a conservative group at Trump’s D.C. hotel. By headlining this event, Gorsuch will personally enrich the very man who appointed him to his lofty position. And he will enable the very mechanism that allows Trump to profit off the presidency. It is unlikely, to say the least, that conservative groups favor Trump’s hotel as a venue because they are fond of its $24 cocktails.
Then, in November, the tour will resume when Gorsuch keynotes the Federalist Society’s annual lawyer’s conference — the same conservative legal group that Trump relied on to pick Gorsuch in the first place.
Neil Gorsuch knows where his bread is buttered. And he rewards his friends.
The ethical implications of some of these events are uncertain. Gorsuch’s speech to the Federalist Society is fairly ordinary — judges often speak to this particular organization. The speech at the Trump Hotel, by contrast, drew concerns from multiple experts on legal ethics, many of whom are academics with no direct stake in Gorsuch’s behavior.
But even if Gorsuch’s actions don’t violate any explicit prohibition, they are certainly bizarre. Judges typically do not spend their early months on the bench conspicuously doing favors for the political actors who helped place them there. As the Atlantic’s Garrett Epps writes, “having decided to accept a nomination so befouled by politics, Gorsuch might have displayed a sense of humility.” Instead, “he will not even pretend to care about how the losers in the process see either him, or the Court.”
Nor are there any signs that Gorsuch’s gifts to his political allies will be limited to a few speeches. As the conservative commentator and law professor Hugh Hewitt wrote in the Washington Post, Gorsuch’s appointment ensures that the Supreme Court will take “a generally hands-off policy on election law and redistricting.” In other words, when Republican legislatures pass laws that make it harder to elect Democrats, Gorsuch has shown every sign he will wave those laws through.
That process will begin almost immediately. During the Supreme Court term that begins Monday, justices could either end the era of partisan gerrymandering or deeply entrench it. They could breathe life into what remains of the Voting Rights Act or gut the law even further. They could dismantle much of the Democratic Party’s grassroots infrastructure.
Gorsuch, along with four of his fellow Republican appointees, have the power to set into motion a downward spiral in which the Supreme Court enhances the GOP’s ability to win elections, thereby entrenching the Court’s Republican majority — and undermining the legitimacy of what’s become an increasingly partisan institution.
The future of American democracy
Gorsuch owes his job to a fundamentally undemocratic system.
The man who appointed him won nearly 3 million fewer votes than the winner of the popular vote. The senators who opposed Gorsuch represent over 18 million more people than the ones who supported him. Meanwhile, President Barack Obama, a man who won two popular elections, did not get to fill the seat that Gorsuch now occupies.
So there’s a devilish symmetry about the fact that Gorsuch is likely to spend his first full term on the Court fighting to make America even less democratic.
If the midterm elections were held today, according to Real Clear Politics’ average of generic congressional ballot polls, Democratic House candidates would win the popular vote by just over 8 points. That’s barely enough for them to regain the House. A shift just slightly in the GOP’s direction will place Rep. Paul Ryan (R-WI) back in the Speaker’s chair, even if voters hand Republicans a resounding defeat in the popular vote.
Against this backdrop, the Supreme Court will consider Gill v. Whitford on Tuesday. A year ago, when Secretary Hillary Clinton seemed likely to be the next president and Chief Judge Merrick Garland, Obama’s nominee to the Supreme Court, the next justice, Whitford also seemed likely to be the case that ended many of the most aggressive partisan gerrymanders. Unlike Garland, however, Gorsuch is all but certain to be a vote in favor of gerrymandering. The only vote that’s seriously in doubt in Whitford is Justice Anthony Kennedy, a conservative who’s been reluctant to halt partisan gerrymanders in the past.
There’s a devilish symmetry about the fact that Gorsuch is likely to spend his first full term on the Court fighting to make America even less democratic.
By swapping out Garland for Gorsuch, in other words, Senate Republicans most likely preserved their party’s control of the other House of Congress. The power to kill Trumpcare for good, to investigate a Republican administration, and to stop other deeply ideological legislation may be denied Democrats — and not because of the will of the people, but because of the will of five men.
The next two terms, moreover, are likely to see a rush of cases with profound implications for future elections — cases that will build upon prior decisions undermining the American democratic process, such as Citizens United v. FEC‘s attack on campaign finance restrictions, or Shelby County v. Holder‘s blow to the Voting Rights Act.
An Ohio case seeks to legalize voter purges supported by the Trump administration. Another case that is likely to be heard this term seeks to defund public sector unions, robbing Democrats of much of their infrastructure in the process. Racial gerrymanders will be before the Court, possibly several times over the next couple of years, as will voter ID laws.
Voter ID laws are a form of voter suppression that disproportionately target low-income voters, students, and people of color, all of which are groups that tend to favor Democrats over Republicans. The proponents of voter ID often argue that it prevents voter fraud at the polls, but such fraud barely exists. A two-year, $250,000 investigation by Iowa’s Republican secretary of state found exactly zero cases of such fraud in his state. Other studies and investigations reached similar results.
The laws’ real effect — and almost certainly their real purpose — is to keep legitimate voters from casting a ballot. Indeed, one recent study found that “11.2 percent of eligible nonvoting registrants” in two Wisconsin counties “were deterred by the Wisconsin’s voter ID law.” That adds up to about 16,800 people in those counties. Additionally, another “6 percent of nonvoters were prevented from voting because they lacked ID or cited ID as the main reason they did not vote.” Meanwhile, Secretary Clinton lost the state as a whole by only 27,257 votes.
It is reasonably likely that Wisconsin’s voter ID law cost Hillary Clinton the state. It is also possible that such laws could reelect Donald Trump, if the Supreme Court allows them to stand.
And if Trump retains the White House, that means more Gorsuches — possibly as many as three or four more. A majority of the Court could be stocked with young, die-hard Federalist Society stalwarts. And, at that point, it may not matter much who wins future elections.
The Supreme Court’s ambitious right flank
On his podcast earlier this week, Vox’s Ezra Klein offered a dim assessment of the Republican Party’s intellectual infrastructure. “There has not been, either within the White House, within Congress, or within the broader conservative or even Trump-affiliated intellectual space,” Klein said, “a real effort at creating a policy agenda.”
This is a common view among policy experts. There is a “wonk gap” between the two political parties. Democrats enacted a detailed, technocratic health care law that emerged from decades spent studying the health care system. Meanwhile, the president’s own aides admit he knows little about health policy, and Republican lawmakers aren’t much better. As one senior Republican aide told Axios’ Caitlin Owens, “If there was an oral exam on the contents of the [Graham-Cassidy health care] proposal, graded on a generous curve, only two Republicans could pass it. And one of them isn’t Lindsey Graham.”
Yet, while Klein accurately describes the militant unwonkishness within the White House and the GOP caucus, that does not mean that the Republican Party lacks innovators. To the contrary, the GOP boasts some of the most technocratic, creative, and radical thinkers in the United States — men and women whose ideas are transforming the face of American law and reshaping everything from our health care system, to our rights in the workplace, to where Americans are and are not allowed to shop.
They work in the federal courts. And they work in some of the wealthiest law firms in the nation. Even as Trumpcare flounders against the rocky shores of the legislative wonk gap, the Republicans on the Supreme Court are pushing an innovative and deeply conservative policy agenda on the nation.
The Federalist Society’s annual gatherings, for example, obsess over one idea — dismantling federal agencies’ ability to regulate. Implicit in this vision, which is shared to at least a limited extent by all five Republicans on the Supreme Court and passionately embraced by Neil Gorsuch, is a sweeping, deregulatory agenda.
Any effective system of environmental regulation, for example, depends on dynamic agencies that can keep abreast of new technologies and adapt regulations accordingly. Much of our health care policy, including much of Obamacare, relies on health regulators being empowered to tweak various policies as new developments arise within the health and insurance industries. By stripping power from federal agencies, five Republicans on the Supreme Court can completely rewrite America’s social contract, and effectively move major segments of entire industries beyond regulation.
Decisions like Burwell v. Hobby Lobby, meanwhile, rest on the innovative and, until recently, largely unheard of idea that a religious objection can be wielded to restrict the rights of third-parties. Religious conservatives now hope to extend that idea to permit violations of anti-discrimination law.
Shelby County, the decision neutering much of the Voting Rights Act, made a similarly innovative and unprecedented expansion of what Chief Justice John Roberts labeled the “fundamental principle of equal sovereignty” among the states.
The Court’s forced arbitration decisions effectively rewrote a 1925 statute multiple times, significantly shifting the balance of power away from workers and consumers and towards big business. This term, the Supreme Court is likely strip away entirely workers’ ability to fight back against small-scale wage theft.
These are bold, transformative ideas — far more thought out than anything emerging from Congress or the White House. And, unlike Trumpcare or whatever tax reform idea ultimately emerges from the GOP’s elected leaders, Republicans on the Supreme Court have actually been effective in turning their ideas into law.
Meanwhile, the Court’s right flank seems eager to push an even more ambitious agenda. Justice Clarence Thomas, for example, appears to believe that child labor laws and the federal ban on whites-only lunch counters are unconstitutional. And, while Gorsuch has not yet weighed in directly on child labor or racist dining establishments, his record so far suggests that he holds very similar views to Thomas.
What comes next
The liberal rebuttal to this kind of rule by judicial decree was best articulated by the Supreme Court’s 1938 decision in United States v. Carolene Products. As a general rule, Carolene Products warns, judges should be modest and cautious of overreach. They should approach laws with a presumption that they are constitutional, and this presumption should only be reversed in very narrow circumstances — such as when a law violates an explicit constitutional prohibition, when it discriminates against “discrete and insular minorities,” or when a law “restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation.”
A primary role of the judiciary, in other words, is to police the bounds of our democracy and ensure that it is not being turned against itself. When a minority group is systematically singled out for disfavored treatment by the prejudices of the majority, or when lawmakers twist our election rules themselves to ensure their own reelection, then judges should step in. Otherwise, they should stay out.
The ideology advanced by our Republican Supreme Court turns this framework on its head. It ignores voter suppression, actively dismantles laws intended to protect democracy, and wades deep into the waters of policy making. Often, it places the branch of government with the least legitimacy — the one with no mandate from the people — at the apex of our society.
If the Court continues to move in the direction that men like Neil Gorsuch will take it, then the difficult question future lawmakers may need to address is whether Carolene Products’ framework should work in the other direction. If Carolene Products calls upon the courts to nurse our democracy back to health when lawmakers infect it with a virus, what is the legislature’s duty when such a virus arises from the judiciary itself?
Is court-packing — adding additional seats to the Supreme Court to dilute the vote of its illegitimate member — an acceptable solution? What about controversial proposals to strip away parts of the Court’s jurisdiction? Could a Democratic Congress deter partisan court decisions by inserting triggers into legislation that Republican judges won’t want to set off (“if any portion of this act is declared unconstitutional, then the marginal tax rate on incomes exceeding $1,000,000 shall be 99 percent”)?
The ultimate danger of a judiciary that reaches beyond its legitimate bounds is that it encourages the other branches to test the scope of their own legitimacy — and potentially forces us all to confront a terrifying question: What is worse, losing our independent judiciary or losing our democracy?