Who’s afraid of democracy?

The bitter battle over the US Supreme Court
An image of Associate Justice of the Supreme Court of the United States Ruth Bader Ginsburg is projected onto the New York State Civil Supreme Court building in Manhattan, New York City, US after she passed away. Photo: Reuters

"This is absolutely the core question: How do you preserve White male rule when it's incompatible with democracy?"

— Heather McGhee, in conversation with political analyst Ronald Brownstein. McGhee, former president of the liberal group Demos, is author of "The Sum of Us."


The sheer brazenness of the Republican volte face following the death of US Supreme Court Justice Ruth Bader Ginsburg is breathtaking. In 2016, eight months before presidential elections, US Senate Republicans balked when US President Barack Obama wanted to fill a vacancy in the US Supreme Court. They invented a new "principle" that in an election year, this should wait until elections.

Today, less than 50 days away from elections, early voting has started in a few states. Yet pretty much to nobody's surprise, US Senate Republicans are ready to accept whoever US President Donald Trump nominates.

The Supreme Court has the last word on vital issues like abortion and Obamacare, so the battle is not surprising. However, the fight also reflects rear-guard action by an entrenched, recalcitrant white minority that seeks to retain through judicial power what is increasingly elusive through the democratic process.

Yet it can be a dangerous ploy that can backfire, if history is any guide. "In the 1850s…the new Republican Party was emerging as the nation's dominant electoral force as the voice of voters in the industrialising North who opposed slavery's expansion," political analyst Ronald Brownstein writes in the CNN Politics website. However, seven of the Supreme Court's nine members were appointed by presidents favouring the south. "That court…sparked outrage among voters in the emerging majority when it repeatedly favoured the interests of Southern slaveholding states," he adds.

The court made a landmark ruling in 1857 in the case of Dred Scott, an enslaved black man who sued for freedom, in which it denied Scott freedom because black people "are not included, and were not intended to be included, under the word 'citizens' in the Constitution."

It was an egregious ruling that provoked justified outrage. Four years later, the American Civil War broke out, and this landmark ruling was a contributing factor. Today America is going through profound socio-political readjustment as its demographics change and its population sorts itself geographically into Republican and Democratic constituencies. Race, alas, continues to cast a dark shadow as the Republican Party gravitates towards rural white Americans while the Democratic Party embraces diversity with open arms.

A Supreme Court justice is determined by two institutions with an undemocratic white bias—the presidency and the US Senate. Two quirks—the electoral college of state-by-state election of the president, and the two-senators-per-state rule regardless of size, gives a lopsided advantage to that Republican demographic. Brownstein lays it out: "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.

In the US Senate, Brownstein notes that "while the (Republican Party) 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."

The democratic squeeze will get tighter in the future. According to demographer William Frey, Americans born after 1981—millennials, Generation Z and the younger cohort behind them—are now a majority of the nation's population. In 2020, millennials and Generation Z combined will equal older cohorts as a share of eligible voters, and in 2024 they will exceed them as a proportion of actual voters. People of colour make up 45 percent of millennials, nearly 49 percent of Generation Z and a 51 percent majority of the younger generation behind them.

It seems like a million years ago when the Republican Party had done what it called an autopsy after back-to-back presidential losses. The party recognised that unless it widened its appeal it faced demographic doom.

Then Trump happened, and all good sense went out of the window. Republican white racial polarisation is now on steroids. According to polls and 2018 Congressional races, even college educated white men and suburban white women are deserting the Republican Party.

The party recognises the looming danger, and the result is a remarkable development. Look anywhere in the developed world and you will be hard-pressed to find any party that is so implacably opposed to universal adult franchise. Under the ruse of voter fraud—a claim debunked by experts—they've tightened voting requirements that, unsurprisingly, makes voting more difficult for minority and poor voters.

The Supreme Court has helped. Two conservative majority-led Supreme Court decisions have given Republicans a substantial edge. In the 2010 case of Citizens United v Federal Election Commission, a conservative majority drove a stake into a bipartisan effort to limit corporate spending to influence elections. Associate Justice John Paul Stevens argued in dissent that the Court's ruling represented "a rejection of the common sense of the American people, who have recognised a need to prevent corporations from undermining self-government." In an even more egregious ruling in the 2013 case Shelby County v. Holder, a conservative majority essentially defanged the Voting Rights Act, the landmark law that protects African American voting rights especially in the American South, which has a notorious history of suppression.

However, these could all turn out to be Pyrrhic victories. The egregious 1987 Dred Scott ruling is a dark reminder that if a court goes against the spirit of the times then its ruling can backfire.

If Republicans think packing the US Supreme Court and lower federal courts with their proteges will protect policies no longer shared by a diverse, different demographic cohort they never bothered to court or engage, they are kidding themselves.

African American author James Baldwin had issued a warning in 1963 in a different context that is chillingly relevant for Republicans today. He quoted from a Negro spiritual song: "God gave Noah the rainbow sign/ No more water, the fire next time!"


Ashfaque Swapan is a contributing editor for Siliconeer, a digital daily for South Asians in the United States.