Judges v. Democracy

Escalating attacks on the Voting Rights Act have reduced elections in the U.S. to a charade

Democrats continue to bray that democracy is on the ballot in November, even though it was lost long ago. With bipartisan support enabling authoritarianism and human rights abuses from our nation’s borders to Gaza, it is farcical to claim that America respects democracy in any meaningful sense.

Washington not only disrespects human rights and international law, but also ignores the will of its own citizens embodied in elections. Concerns about elections being effectively rigged—whether by political party elites, the national security apparatus, or the press—find ample grounds for justification, but tend to overlook attacks on voting rights as a separate threat to election integrity

Around the time that the Supreme Court struck down Roe v. Wade, Americans finally started paying attention to the crisis in the judiciary that has been festering for at least the last generation. 

Having dedicated an earlier part of my career to defending the courts from a right wing takeover that has grown entrenched despite my better efforts, I wanted to take a few minutes to explain the most recent example of judicial demagoguery, how it has degraded democracy, and how it is poised to grow even worse. 

Law v. politics

Since the earliest days of the Republic, political scientists, policymakers, and judges alike have all recognized the inherent tension between law and politics.

The political process is designed to be majoritarian. It is a process designed to aggregate public perspectives, and theoretically inform the actions of government based on the consent of the governed.

In sharp contrast, law is designed to be counter-majoritarian. It necessarily involves elite appointed figures (judges) making decisions without popular input, often to overturn the actions of majoritarian political branches like Congress.

That tension is one reason why judges have historically practiced judicial restraint, and pilloried each other, when stepping beyond their roles, with charges of judicial activism. While conservative critics labeled the judges of the Warren Court as activists, the far greater example of judicial activism has been the relentless war on civil rights by the Supreme Court majorities led by William Rehnquist and his protégé, John Roberts. 

Section 5’s pre-clearance provisions

In 2013, the Roberts Court struck down critical provisions of the Voting Rights Act, which was first enacted in 1965 and most recently re-authorized in 2006 under remarkable circumstances. The VRA was re-authorized not only by an overwhelming bipartisan majority in the House, but also a (rare) unanimous vote in the Senate before being signed into law by President George W. Bush.

The VRA was enacted in order to remedy a legacy of racial discrimination, particularly in the South. Its passage was a central victory of the civil rights movement, which (contrary to popular belief) was denied most of its goals, while being offered procedural voting rights as something of a concession.

When President Lyndon Johnson signed the Civil Rights Act of 1965, he knew that his party would lose the South for a generation. The only thing he was wrong about was that the dedication of the South to the GOP would frankly last even longer.

One of the VRA‘s most critical provisions was Section 5, which allowed the Justice Department to require jurisdictions with a history of racial discrimination to pre-clear changes to their voting laws to make sure that they didn’t undermine civil rights before any proposed changes took effect. That provision in the law gave the Justice Department a crucial administrative role as an overseer of local jurisdictions and states that refused to heed the rights of their citizens.

Before it was neutralized, Section 5 stopped local, county, and state governments from retrogression, ensuring that progress in voting rights would not be lost to racial majorities eager to entrench their own power. It particularly prevented jurisdictions from taking steps that marginalize minority voters, like purging registration lists or changing the locations of voting sites without adequate public notice.

While the Roberts Court’s decision in Shelby County v. Holder (2013) did not formally strike down Section 5, it rendered it unenforceable by striking down the coverage formula in Section 4(b). The Court imagined that racial discrimination in the South was a thing of the past, but by hamstringing the VRA’s pre-clearance provisions, the Justices effectively invited its escalation. Congress could theoretically muster a majority to update the coverage formula, as the Court suggested in Shelby County, but that’s not likely to happen anytime soon given the partisan rancor that prevents Members from agreeing on much beyond bipartisan weapons sales.

When the Supreme Court rendered Section 5 effectively unenforceable, some observers suggested that the VRA still had teeth because Section 2 survived. Section 2 is a parallel section allowing private parties to enforce the law after the fact, separate from the Justice Department’s authority under Section 5 to pre-clear—or block—changes to voting laws before they were implemented.

Sadly, assurances that communities could continue to rely on Section 2 appear to have been misplaced.

Section 2’s private right of action

Reflecting the influence of Trump-appointed judges on the law, Justice Neil Gorsuch suggested in 2021 that the private parties do not enjoy a private right of action under Section 2 of the VRA. While his opinion in Brnovich v. DNC (2021) did not carry the force of law, it effectively invited any number of judges in the lower courts to set up a case giving Gorsuch a chance to bake his once fringe opinion into the law.

That process is well underway. 

In 2022, Judge Lee Rudofsky (who former President Trump appointed to the bench in 2019) took the invitation issued by Justice Gorsuch the year before, ruling in NAACP v. Arkansas Board of Apportionment that private plaintiffs lack standing to enforce Section 2. His ruling was upheld 2-1 by a three-judge panel of the 8th Circuit Court of Appeals, even though it would effectively neutralize the last remaining vestige of the VRA’s once formidable attempt to end racial discrimination in voting.

The case is now pending before the Supreme Court, whose decision could hold monumental implications for voting rights. Over the course of the past 40 years, over 96% of the Section 2 cases filed in federal courts have been filed by private plaintiffs normally represented by non-profit organizations like the NAACP or ACLU. That entire line of cases would come to a screeching halt if the Supreme Court upholds Rudofsky’s ruling.

What ethics?

Beyond the crisis in democracy sparked by the right wing attack on the Voting Rights Act is a long-standing—and ongoing—scandal with respect to judicial ethics.

Because judges operate in an inherently anti-democratic fashion by imposing elite judgments on the wheel of political majorities, the vast majority of them are required to recuse themselves from cases in which their interests are implicated. That’s not a complicated rule, and it should not be controversial.

But while judges throughout the lower courts are effectively constrained by ethical principles, justices of the Supreme Court answer to no higher authority. They also seem to stoop to no lower standards.

Justice Thomas has made a mockery of judicial ethics by accepting lavish gifts from robber barons and magnets whose companies appear before his court. Justices Alito, Gorsuch, Kavanaugh, and Barrett each lied to Congress in order to secure their Senate confirmations. And Justice Kavanaugh appears to embody the most distasteful aspects of predatory men.

After Senators threatened to impose ethical reforms on the Court last year, the Justices of the Supreme Court acknowledged these concerns by adopting a new code of supposed ethics for the first time. But, as many observers have noted, it has no teeth, plenty of loopholes, and should offer no comfort about the Court’s political conflicts of interest.

Even though Supreme Court Justices remain effectively immune from any ethical restrictions, they wield more power than any elected member of government, enjoy lifetime tenure, and—at this moment—they hold a knife to the throat of whatever remains of democracy.

What this all means

I’ve been vocal about the evisceration of democracy in America, the false hopes that it could be redeemed in November, and particularly, the roles played by political parties and professional, journalists in enabling this escalating corruption. I’ve also recently written about the legitimate observation by a California Senate candidate that her race was effectively rigged.

This post highlights how the judiciary has also been mobilized to promote authoritarianism, degrade the ability of voters to impact government policy, and subject minority communities to arbitrary restraints on their ability to participate in elections.

America goes to great lengths to present itself to the world as a guardian of democracy. But our country’s supposed commitment to democracy is ultimately a performance.

Paid subscribers can access a further section explaining how Democrats are ducking into attacks on democracy by repeating a mistake they already made once before that put Trump in the White House in 2016.

Democrats duck into a punch…yet again