by Neil H. Buchanan
Why do courts exist? More precisely, why do constitutional courts -- courts whose jurisdiction is not simply criminal and civil adjudication but that covers questions of the sort that currently reach the U.S. Supreme Court -- exist?
Two answers to that question arise from very different choices in the design of a democracy. One choice is whether to have direct or representative democracy. If there is not going to be rule by plebiscite or town hall meeting, then there must be rules to set up and maintain a representative democracy. The other choice is whether the government will be purely majoritarian or will instead live within limits on what it can do and under what conditions. Note that one could have counter-majoritarianism even without representative democracy, just as the reverse is true, but in any event, we in the United States currently have both.
Once we have answered those two questions, we need constitutional courts. We need them to decide when the rules of representative democracy have been violated, and we need them to determine when the representative democracy's processes have produced laws and regulations that violate non-majoritarian interests and rights.
I do understand that most (if not all) Dorf on Law readers are aware of these fundamentals, but it is very much worth going back to these basic matters today. With an empowered right-wing judiciary flexing its muscles under the Trump presidency, we are no longer arguing about close calls regarding, say, the limits of the commerce power or how to evaluate the competence of criminal counsel. We are looking at the destruction of basic assumptions about how we answer both the representational question and the counter-majoritarian question.
My conclusion in this column is as extreme as the situation that we confront: The Supreme Court as currently constituted has continued to rewrite the rules regarding the non-majorities that will be protected, but much more fundamentally, the Court now stands poised to assist the Republican Party in ending representative democracy in all but form. That is not a happy conclusion, and it is worth explaining.
As I was writing yesterday's Dorf on Law column, the Supreme Court handed down two major decisions. The first saw the Court's five hyper-conservative justices say that the courts have no role at all in policing partisan gerrymandering. (I suspect that they will soon eviscerate the courts' historic role in striking down racial gerrymanders as well, but that is for another day.)
Yesterday's second Court decision temporarily continued to block the Census Bureau from adding a question about citizenship to the 2020 enumeration. I wrote a few brief comments about that case in the time available between the opinion's publication and my writing deadline, but I noted that there were many questions raised by the opinion, especially regarding whether there was sufficient time for the Commerce Department (which houses the Census Bureau) to cure its faulty process and have the question added in time for the Census to be administered.
In the 24 hours since then, there has been no clarity about the path forward in the Census case. Predictably, Trump disparaged the decision and tweeted that he wanted "the lawyers" to have time to get it right. One particularly troubling question is whether Trump's people will simply delay the 2020 census as long as necessary to allow the courts to give them the answer that they want.
And the courts surely will do so. Notwithstanding the 5-4 split that saw Chief Justice Roberts side with the non-conservatives in saying that Commerce's process was obviously dishonest, the four other hyper-conservatives were already willing to bless this mess; so all we need is for Roberts to get some fig leaf that makes him comfortable, and we will then see roughly 6.5 million people deliberately excluded from the decennial count of Americans.
Again, will there be a deadline that cannot be breached? I am not counting on it. Surely, Roberts and his pals would have no problem writing an opinion that allowed a late start to the census. After all, their treatment of this case was already almost comically clumsy. In April's oral argument, for example, Justice Alito groused about the statistical analyses that were central to the case, saying with obvious frustration: "This gets really, really technical." Well, yes. Yes, it does. But Alito was more than happy simply to ignore the evidence rather than understand it. He might as well have said: "I know nothing!"
Meanwhile, Justices Gorsuch and Kavanaugh cheerily cited international evidence to support the claim that a citizenship question on a census is normal -- even though they come from a legal cabal that has screamed to high heaven about the courts even looking outside the United States in making decisions.
But the prize went to Trump's Solicitor General, who waved off the expert conclusions of Trump's own Commerce Department by saying: “Look, there’s no question that the bureau staff preferred not to have this question on the census. But what they were telling the secretary was that they couldn’t tell which model would be more or less accurate." That is a bald-faced lie. Like any good statisticians, the Census staff presented confidence intervals and admitted that nothing is 100 percent certain, but they most definitely did not say that they could not tell which model was more accurate. They concluded that the best models pointed to a catastrophic under-count, and they thus advised against adding the citizenship question.
Even so, Roberts's only concern was that the Commerce Secretary had not adequately explained why he drew an oh-so-reasonable conclusion about including a citizenship question. This is not a case in which Roberts is standing with the liberals on anything more than the most minimal of principles.
As I noted yesterday, however, that decision by Roberts is itself not easy to explain. As I explained there, my working theory has been that, until the Republicans have ended representative democracy, the Chief Justice is the lone adult in the right-wing universe, and he is trying to prevent his colleagues from creating too much drama and thus risking a backlash from otherwise quiescent voters (and those who have chosen not to vote until now).
The confusion arises from my sense that the citizenship question is simply not dramatic enough to cause a backlash. People would freak out about, say, overruling Roe or declaring that the Constitution does not permit minimum wage laws. Why would the citizenship question fall into that category, or more accurately, why would Roberts think that it does?
My best guess is that Roberts correctly anticipated the news coverage of the combined rulings in the gerrymandering and Census cases, allowing the Court to be lauded for at least some restraint in these two high-profile cases. A "split decision" makes everything look nice and judicious. A sweep for the Republicans would have made the Court look partisan, so Roberts was willing again to take the heat and delay the Republicans' inevitable victory.
All of which brings us back to the two questions that frame this column. On the question of counter-majoritarianism, the Court in its current hyper-conservative configuration is not doing anything new, but it is simply chipping away at protections of discrete and insular minorities.
That does not mean that the Court's majority will not strike down laws that have been passed by elected legislatures, of course. Gun control laws will go away soon enough, I suspect, and after Roe is explicitly or effectively repealed, there is every reason to believe that anti-abortion extremists will convince the Court that abortion is not a state-level decision after all. No state's abortion laws will be safe from this Court.
Even if I am wrong about that, however, the Court has clearly decided that it is no longer in the business of protecting representative democracy. In their gerrymandering decision yesterday, the hyper-conservative majority claimed that the courts simply lack the expertise needed to handle such cases, which is absurd. Only when Roberts and friends want to reach a favored conclusion do they suddenly say (a la Alito above) that "math is hard" -- or more accurately, that thinking is hard.
Justice Kagan's dissent in the gerrymandering case will surely be studied for decades to come, and I do not claim to be making any points here that she could not make more eloquently. But the fundamental idea is that the courts have always differentiated themselves from "the political branches" as a way of saying that some questions should be left to the politicians, because they are closer to The People.
That fundamental point only makes sense, however, if the political branches are truly representative of the people. Rather than saying that gerrymandering is non-justiciable, the Court should view as one of its core functions the policing of any efforts by politicians to defeat truly representative democracy.
Why would this Court allow Ohio to purge its voter rolls in an obviously partisan way? Why is it not jumping on examples of voter suppression to preserve the idea that The People must choose their representatives? After yesterday's gerrymandering case, will the Court (as some observers have suggested) soon move on to decide that states' decisions to have nonpartisan commissions draw legislative district lines are somehow a violation of the Constitution?
My argument, again, is that the Court's five Republican jurists know exactly what they are doing, and they are a key part of their party's effort to end democracy as we know it. Being solicitous toward the rights of Republican voters and hostile to Democratic-leaning voters in counter-majoritarian cases is bad enough, but participating in a long-term effort to end representative democracy will be this Court's saddest -- and most difficult to reverse -- legacy.