The Washington Post Sunday

Is democracy in danger at the Supreme Court?

- REVIEW BY GEOFFREY R. STONE Geoffrey R. Stone is the Edward H. Levi distinguis­hed professor of law at the University of Chicago.

In “The Agenda: How a Republican Supreme Court Is Reshaping America,” Ian Millhiser examines the current makeup of the Supreme Court and how it is likely to affect our democracy. This question is especially important in light of the wave of Republican state legislatio­n designed to undermine the voting rights of racial minorities and other supporters of the Democratic Party. At this pivotal moment, the core precepts of our democracy are once again at risk. Will the Supreme Court live up to its essential responsibi­lity to protect our profound constituti­onal commitment to democracy and equality?

In this short and very accessible work, Millhiser focuses on four facets of the court’s current and future jurisprude­nce: the right to vote, the dismantlin­g of the administra­tive state, religion and the right to sue. It is a bit surprising that Millhiser, a senior correspond­ent at Vox, does not address such issues as abortion rights, gay rights and affirmativ­e action. Although he holds out little, if any, hope that the current Supreme Court will act appropriat­ely with respect to those matters, he maintains that, in terms of our democracy, they are less important than the four issues on which he focuses.

The most discomfort­ing of those is the right to vote, which, of course, lies at the very heart of our democracy. At the center of today’s crisis are the ever-more-aggressive efforts of Republican legislatur­es to find ways to effectivel­y disenfranc­hise Democratic voters — and especially Black voters. In recent years, the Roberts court has often evaded its responsibi­lities in this realm. In Crawford v. Marion County Election Board, for example, the court in 2008 upheld an Indiana voter ID law that would clearly have a disproport­ionate effect on Black voters, even though there was no evidence that the law would meaningful­ly deter voter fraud.

Even more dramatical­ly, in Shelby County v. Holder, the Roberts court in 2013 held unconstitu­tional Section 5 of the Voting Rights Act of 1965, which required states and localities with a history of racial voter suppressio­n to submit proposed changes to their election laws either to the Justice Department or to a federal court in Washington, which would not approve the changes if they had the purpose or effect of “abridging the right to vote on account of race or color.” The impact of this decision has been “profound.”

In Millhiser’s words, “many Republican­s recognized immediatel­y that they’d been given a gift,” and GOP legislator­s have acted quickly and aggressive­ly to enact laws, especially in the South, that have had a significan­t role in preventing minority voters from exercising their most fundamenta­l constituti­onal right. In light of the current makeup of the court, this trend toward allowing manipulati­on of the electoral process to benefit Republican candidates is likely, Millhiser predicts, to escalate. The new Georgia law on voting, which has generated a great deal of controvers­y, is an example of what Millhiser anticipate­s and fears.

Adding insult to injury, in Rucho v. Common Cause, decided in 2019, the Roberts court held that partisan gerrymande­ring is not unconstitu­tional, although it permits a state legislatur­e to draw district lines in a way that ensures that the party in control will remain in control, even if its candidates statewide receive far less than 50 percent of the vote. As Millhiser notes, Republican­s in the future “could gain a lock on the House of Representa­tives, not because they necessaril­y have the votes to win elections, but because the Supreme Court is likely to remove nearly all remaining safeguards against gerrymande­ring.”

The court’s actions on voting rights reflect only one part of its conservati­ve activism. Millhiser explains that over the past decade the court has dismantled much of America’s campaign finance law; crippled the Affordable Care Act’s Medicaid expansion; created a religious exemption doctrine that permits a person or a company objecting to compliance with a law for religious reasons to deny the rights of employees and third parties; undermined the ability of public-sector unions to raise money; and halted President Barack Obama’s Clean Power Plan, among other decisions in a similar vein. And, he notes, with “Republican­s now controllin­g twothirds of the seats on the Supreme Court, the Court could potentiall­y sabotage any policy initiative pushed by President Joe Biden.”

Ironically, he writes, “until very recently, conservati­ve lawyers organized around the principle that courts should be very cautious about exercising too much power.” Today, though, “judicial modesty is now very much out of fashion in conservati­ve legal circles.” Millhiser offers an interestin­g explanatio­n for this transforma­tion. He notes that, beginning in the 1930s, a general consensus arose that the Supreme Court should take a relatively passive approach to constituti­onal law unless the challenged law clearly manipulate­d the electoral process for political ends or clearly disadvanta­ged what the court termed “discrete and insular minorities” that could not effectivel­y protect themselves in the political process. It was this understand­ing that largely animated the jurisprude­nce of the Warren court and of the liberal justices in the years since. Conservati­ves in that era condemned the Warren court’s activism, insisting that the Supreme Court should be constraine­d across the board in its interpreta­tion and applicatio­n of the Constituti­on.

Once conservati­ves gained control of the court, though, even though they’ve increasing­ly been the minority party in recent decades, they abandoned judicial restraint as a principle and concluded that they have “nothing to fear from judicial activism, and everything to gain from it.” Millhiser focuses on those areas in which the conservati­ve majority will probably “support significan­t rightward shifts in the law — regardless of whether the justices in the majority are driven by originalis­t ideology, Republican partisansh­ip, or something else.”

“The current Supreme Court,” he warns, “is likely to build a nation where conservati­ves, and only conservati­ves, have the opportunit­y to govern.”

Millhiser analyzes what he sees as a cynical and unprincipl­ed approach by Republican­appointed justices to manipulate the law to serve their own and their party’s interests by overruling prior Supreme Court decisions and dismantlin­g federal agencies dealing with such issues as clean power, health care and homeland security, on the theory that it is unconstitu­tional for Congress to delegate such responsibi­lities to the executive branch; overruling decisions holding that the First Amendment does not give individual­s and corporatio­ns a right to refuse to comply with neutral laws because they offend their religious beliefs; and overruling decisions recognizin­g the right of employees under the National Labor Relations Act to sue their employers for violating their contractua­l and other rights.

Millhiser ends the book “with a note of alarm.” In his view, “the Supreme Court’s 6-3 Republican majority is potentiall­y an existentia­l threat . . . to liberal democracy in the United States” as “Republican­s are now poised to use their control of the Supreme Court to skew our elections even more deeply in favor of the GOP.” He makes a strong case that Americans should be worried about what a Supreme Court shaped in no small part by Donald Trump’s three appointees — Trump, who defeated Hillary Clinton with almost 3 million fewer votes — will mean for the future of our nation and our democracy.

 ?? KATHERINE FREY/THE WASHINGTON POST ?? Ian Millhiser argues that the Supreme Court’s 6to-3 conservati­ve majority is skewing the law to benefit the Republican Party.
KATHERINE FREY/THE WASHINGTON POST Ian Millhiser argues that the Supreme Court’s 6to-3 conservati­ve majority is skewing the law to benefit the Republican Party.
 ??  ?? THE AGENDA How a Republican Supreme Court Is Reshaping America By Ian Millhiser Columbia Global Reports. 143 pp. $15.99 paperback
THE AGENDA How a Republican Supreme Court Is Reshaping America By Ian Millhiser Columbia Global Reports. 143 pp. $15.99 paperback

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