Matt Yglesias published a widely shared piece arguing that the Democratic Party is in “deep trouble” Monday morning. The piece is excellent and you should read it.
Yglesias’s piece, however, ignores what may be the greatest looming threat facing Democrats in the years following 2016. His central thesis is that, while Democrats control the White House and have at least a decent likelihood of retaining it after the upcoming election, Republicans dominate the other levers of American government. “The vast majority — 70 percent of state legislatures, more than 60 percent of governors, 55 percent of attorneys general and secretaries of state — are in Republicans hands,” Yglesias writes. “And, of course, Republicans control both chambers of Congress.” To solve this problem, Yglesias urges Democrats to shift focus away from “a slightly bizarre bidding war between Hillary Clinton and Bernie Sanders to see whether Congress in 2017 will reject a legislative agenda that is somewhat to the left of Obama’s or drastically to its left” and towards tactics that are likely to achieve “down-ballot electoral success.”
If you don’t like gerrymandering, you should blame the Supreme Court.
Reading Yglesias’s piece, however, one comes away with the impression that there are only two branches of the federal government — the president and Congress. Granted, these are the only two elected branches, but the winner of 2016’s presidential election is likely to play an unusually large role in shaping the membership of the Supreme Court. And the Democratic Party’s best road to relevance in highly gerrymandered states begins with changing the makeup of the nation’s highest Court.
Placing Blame Where It Is Due
As Yglesias notes, many of the Republican Party’s structural advantages in state legislative and U.S. House races stem from gerrymandering — “GOP control of most state legislatures lets Republicans draw boundaries in a way that is even more GOP-friendly than the natural population distribution would suggest.” He also names several policies pushed by Republican state lawmakers that further entrench GOP control. “New curbs on voting rights, to further tilt the electorate in a richer, whiter, older direction” help shift the electorate away from the Democratic Party and towards Republicans. Meanwhile, “union-hostile ‘right to work’ laws” starve a backbone of the Democratic Party’s infrastructure of the funding and members it needs to function.
If you don’t like gerrymandering, you should blame the Supreme Court. In the 2004 case Vieth v. Jubelirer, four conservative justices said that they would forbid federal courts from hearing challenges to partisan gerrymanders, and Justice Anthony Kennedy’s concurring opinion was only slightly less dismissive of these lawsuits. The result is that state lawmakers have been free to draw maps that entrench their party and lock out the other party, even though such maps violate voters’ First Amendment rights.
The Supreme Court is also complicit in the wave of “curbs on voting rights” that Yglesias notes in his piece. In a party-line vote, a 5–4 Supreme Court gutted a key provision of the Voting Rights Act, enabling many voter ID laws, gerrymandered maps and other legislation that would have otherwise been blocked to go into effect. Similarly, the Court in Crawford v. Marion County Election Board effectively greenlighted Voter ID laws — one of the most common examples of state laws that exclude voters likely to support Democrats. The Court’s plurality opinion cited concerns about in-person voter fraud to justify this outcome, even though the opinion could only find one example of such fraud occurring in the United States within the preceding 140 years!
With respect to unions, the Roberts Court could make Scott Walker look like Eugene Debs. Sure, Republican state lawmakers can enact a so-called “right to work” law in a single state. Later this term, however, the Court will hear Friedrichs v. California Teachers Association, a case that asks the justices to impose a right to work regime on every single public sector union in the country. In 2014, nearly half of all unionized workers were in the public sector, so Friedrichs could deal a sharper blow to unions than any state’s government could deal on its own.
When the next president takes office, conservative Justices Kennedy and Antonin Scalia will both be 80 years old. If a Democratic president replaces them with, say, Justices Nina Pillard and Sri Srinivasan, then it is likely that partisan gerrymandering will be struck down, Crawford will be overruled and the Voting Rights Act will be reinstated. The newly constituted bench would also be able to undo any judicial attacks on unionized workers.
This matters a great deal because, unless the Supreme Court intervenes, taking back the House and many state legislatures is a nearly impossible task for Democrats. In 2012, Democratic House candidates received nearly 1.4 million more votes than Republican candidates, yet Republicans wound up with a solid majority in the House largely due to favorable district lines. Indeed, Democrats would have needed to win the 2012 House elections by an estimated 7.25 percentage points to take back the House. That’s more than the GOP margin of victory in the 2010 wave election (6.6 percent) and only slightly less than the Democratic margin of victory in the 2006 wave (7.9 percent).
Similarly, many states are extraordinarily gerrymandered at the state legislative level. Virginia, for example, has a Democratic governor, yet Republicans enjoy a 67–32 supermajority in the state’s House of Delegates. Similarly, Pennsylvania also has a Democratic governor, but Republicans enjoy a 120–83 majority in the state house and a 30–20 majority in the state senate.
Unless the Supreme Court intervenes, taking back the House and many state legislatures is a nearly impossible task for Democrats.
Simply put, there are no tactics in these states that are likely to achieve “down-ballot electoral success” for Democrats — at least if future elections are conducted under the current, skewed rules. The party’s only hope is to hold onto the White House long enough to flip the Supreme Court, then file a lawsuit seeking to restore fairness to state and U.S. House elections.
The Democratic Nightmare
On the other hand, if a Republican president replaces Justices Ruth Bader Ginsburg and Stephen Breyer — who will be 83 and 78, respectively, when the next president is sworn in — the newly constituted bench could leave Democrats pining for the days when their only challenges were rigged districts, voter suppression laws and hollowed-out unions. At the very least, an even more conservative Supreme Court would entrench decisions like Vieth, Crawford and Friedrichs, but it is likely that it would do much, much more.
To give an idea of just how bad things could get, the 2015 Supreme Court case King v. Burwell asked the justices to gut the Affordable Care Act based on the unique legal argument that much of the law’s text does not count. This proved a bridge too far for two of the Court’s Republicans, Kennedy and Chief Justice Roberts, who joined the Court’s four Democrats in an opinion reminding conservative lawyers that “in a democracy, the power to make the law rests with those chosen by the people” and not with five members of the Supreme Court. Notably, however, three of the Court’s Republicans — Justices Scalia, Clarence Thomas and Samuel Alito — embraced the argument that the law most reviled by Republicans must be read to destroy itself.
King is a double warning for Democrats. It is a sign that the Court’s right flank — and the sort of judges who are likely to join that right flank in a Republican administration — are willing to sign their names to legal arguments that take them far afield from well-established legal principles. It’s also a warning that Democrats probably will not be able to anticipate the many unique and creative ways that a Court led by extraordinarily conservative justices like Thomas or Alito will be willing to transform the law.
Democrats will have few good options if a Republican president fills the Court with five Alitos.
In the worst case scenario for Democrats — a scenario that many influential conservative thinkers are clamoring for — the Supreme Court’s new majority could revive something similar to the Lochner Era, a period in the late nineteenth and early twentieth century when the justices fabricated extra-constitutional legal doctrines to strike down legislation such as child labor laws and the minimum wage. If that happens, it won’t matter if Democrats overcome voter suppression laws, gerrymandering, crippled unions and whatever other obstacles Republicans on and off the Supreme Court dream up to entrench their own power. Any significant legislation signed by a Democratic president over Republican objections is likely to be struck down in the same way Republicans asked the Supreme Court to strike down the Affordable Care Act.
Because Supreme Court justices serve for life, moreover, Democrats will have no good options if a Republican president fills the Court with five Alitos. When President Franklin Roosevelt faced a rogue Supreme Court that frequently disregarded the Constitution in service of conservative ends, he proposed a “court-packing” plan that would have added several new justices and diluted the votes of the Court’s conservative wing. This proposal, however, was extraordinarily unpopular, despite the fact that Roosevelt proposed it shortly after winning a landslide election and the fact that the Court had, at that point, engaged in rogue behavior for many decades. The likelihood that a Democrat elected in 2020 would be able to achieve what Roosevelt could not, especially in light of the fact that gerrymandering would continue to give Republicans an advantage in U.S. House elections, is slim to none.
Nor is a constitutional amendment a viable solution. As I explain in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted the Constitution is nearly impossible to amend. Amendments require 3/4s approval from state legislatures, a fact that typically prevents amendments from being enacted that are opposed by any major political faction within the United States. And, again, because gerrymandering, voter suppression laws and other factors give Republicans an advantage in state legislative races, it would be particularly difficult for a Democratic president to garner the state legislative support necessary to amend the Constitution.
The Democratic Party, in other words, is facing an apocalypse if the Supreme Court moves further to the right, and the only way for them to stop this apocalypse is to hold on to the White House.