Stability as Impediment to Democracy
by Michael C. Dorf
My latest Verdict column picks up where Prof Buchanan and I each left off last week in talking about the end-of-Term SCOTUS cases. I argue in the column that the outcomes of Americans for Prosperity Foundation (APF) v. Bonta and Brnovich v. Democratic National Committee are not especially troubling but that each case is highly problematic for what it portends about where the Court's conservative super-majority is willing to go. APF portends the potential invalidation of campaign finance disclosure obligations, while Brnovich heralds further enthusiastic SCOTUS acquiescence in GOP-state-legislature-led suppression of minority and Democratic voters.
That said, as Prof Buchanan, other observers, and I have been warning for months now, the mortal threat to American constitutional democracy is less from laws that restrict voting than it is from the state laws that assign to state legislative officials themselves or reliable Republican flunkies the power to tally, recount, and otherwise "find" votes. Nothing in Brnovich or any of the Roberts Court's other election-related rulings indicates a willingness to save American democracy from these efforts. The most for which one may be able to realistically hope is that the Court does not aid in further sabotaging it--and that's likely not going to be enough.
There you have our usual doom and gloom. Now I want to pivot to a different kind of doom and gloom.
As a consequence of various highly contingent path-dependent events, the coalition that currently supports the Republican Party consists chiefly of white religious conservatives, concentrated in rural and semi-rural areas in the South, upper midwest and plains, some number of whom are active racists and many of whom are motivated by various grievances, along with extremely wealthy and merely well-to-do economic conservatives who may or may not share the views of the less well-to-do Republicans but do not care enough about social issues to leave the party. Obviously, some of the latter did just that; in the last two national elections, the shift of white suburbanites towards the Democratic Party reflects alienation from Trump and Trumpism, but I'm talking now about the remaining coalition, which, by definition, consists of those who remained.
Losers of the popular vote in seven of the last eight Presidential elections, Republicans would be a minority party in a country with a reasonably majoritarian national electoral system. However, the Electoral College, gerrymandering in state legislatures and the House of Representatives, and the over-representation of rural voters in the Senate combine to give Republicans a fighting chance at winning power. Even with all of those advantages, their time is passing. What to do about that?
There was a brief period after the 2012 election and ensuing "autopsy report," when it appeared that Republicans were going to change their positions to attract a wider base of support. A reasonable bet would have been to abandon the racism but double down on the religion, building a multi-racial/multi-ethnic coalition of religious conservatives, perhaps still in uneasy alliance with business conservatives.
To some extent, Republicans have succeeded a bit in going in this direction despite their failure to follow through on the autopsy. As has been widely noted and recently confirmed by Pew, Trump made gains in 2020 relative to 2016 among Latinx voters. That's an incredibly diverse group, of course, so it's hard to avoid over-generalizing, but given Trump's toxic rhetoric and policy on matters of importance to Latinx voters, the shift probably reflected the social conservatism of many such voters. In particular places, like south Florida, support for Republicans was also a reflection of the rise of the use of the term "socialism" among left-leaning Democrats, which was particularly alienating to voters with ties to Cuba and Venezuela.
If American democracy were left to its usual devices, I suspect we would see a realignment. As it grew more ethnically and racially diverse, the Republican Party might soften on issues like immigration. It's hard to know what the ultimate coalitions would look like. On any set of issues there is a range of policy views that only awkwardly fit onto a left/right spectrum; aggregating across policy issues might scramble these alignments even further; the only certainty is that in a system of competitive elections, the parties would continually refine their positions to compete for winning coalitions.
The Trump takeover of the GOP has not ruled out the possibility of growth through recalibration of policies and thus constituencies, but it has rendered it irrelevant. Because neither Trump nor the core of his supporters have any commitment to democracy, they have been working assiduously to ensure that they can hold power regardless of their unpopularity overall. And that has in turn limited the possibilities of growth through policy adjustments.
Again, that's not to say that Trump, FoxNews, and the rest of the right-wing grievance industrial complex aren't working hard to attract and mobilize voters via bogeymen like Critical Race Theory; it just means they aren't counting solely on the appeal of their ideas. They're also displacing heretofore honest machinery for tallying votes with the sorts of mechanisms that autocrats around the world use for holding show elections.
If we were watching what's been happening in the U.S. over the last half decade or so unfolding in a country without a history of stable democracy, we would be saddened, but we would not regard it as necessarily an extinction event for democracy in that country. Various Latin American countries, for example, have gone through periods of authoritarian rule followed by genuinely democratic periods. So too for the countries of central and eastern Europe, including those, especially Hungary, that have slid back into autocracy.
Would a Trumpist restoration via state legislative chicanery allowed or enabled by the Supreme Court be more of a death-knell for American democracy than Viktor Orbán's ongoing destruction of Hungary's democracy has been? An American slide into autocracy would be more of a breach, of course. Post-communist Hungary had only been democratic for a relatively short period before Orbán came to power. But ironically, the very fact that the U.S. has, for all its flaws, had a stable more or less democratic regime for so long would make its destruction by nominally legal means all the more difficult to reverse.
If Trump or some other figure were to overthrow the U.S. government through exclusively violent means, we could envision bloodshed ensuing but then a restoration. However, the more likely path to power will involve localized threats of violence but the use of the official machinery of state government, which will then be allowed to stand by the courts. The patina of legitimacy will combine with the longstanding stability of U.S. institutions to make the Trumpist usurpers' claim to authority sufficiently continuous with what came before that even as many people cry foul, it will be difficult for organizers of widescale protests to win over the military or other insiders whose support would be necessary to oust the Trumpist regime.
Put differently, part of why I am so pessimistic about the future of American democracy is that the most likely path to displacing it will cloak the usurpers in unearned legitimacy. The Supreme Court's role in this drama is relatively minor; Trump and Trumpism are, after all, manifestations of a global phenomenon; but the Court is blameworthy nonetheless.