My Turn: High court ‘truest threat’ to American democracy

The U.S. Supreme Court is seen in 2021 in Washington, D.C.

The U.S. Supreme Court is seen in 2021 in Washington, D.C. KEVIN DIETSCH/GETTY IMAGES/TNS

BY DAVID DALEY

Published: 09-12-2024 5:31 PM

 

During his 2005 Senate confirmation hearings, John G. Roberts Jr. introduced himself to the American people as the reasonable dad next door, who viewed his role as chief justice through our civic religion of baseball.

“I will remember that it’s my job to call balls and strikes, and not pitch or bat,” Roberts promised.

Yet even in that moment, Roberts was playing something else: a patient long game to use the courts to unravel multiracial democracy and provide an advantage to the Republican Party.

Two decades later, it’s the chief justice and a court packed with Federalist Society true believers wearing the red robes of the GOP that represent the truest threat to American democracy.

The dangerous state of American elections did not come about by accident. On the 100th day of Barack Obama’s presidency, while the nation focused on an economic meltdown and the potential collapse of the automotive industry, the Roberts court got to work on our antidemocratic slide.

The case the court heard on April 29, 2009, hardly appeared momentous. A tiny neighborhood water district in the northwest corner of Austin, Texas, sought to challenge the Voting Rights Act’s most crucial enforcement mechanism, pre-clearance, which required states with the most lengthy track records of bad behavior on voting rights to get approval from the Justice Department of any changes to the rules.

Two lower courts had disemboweled the district’s request to escape pre-clearance and affirmed the larger question of its constitutionality, citing a careful study of a 16,000-page congressional record built during the 2006 reauthorization of the Voting Rights Act and Supreme Court precedent.

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Yet during oral arguments, the court’s Republican appointees looked ready to scuttle the nation’s most effective civil rights litigation ever. The chief justice, in no rush, negotiated a deal with the liberals instead: Pre-clearance could continue. But the price Roberts extracted proved steep: The liberals needed to sign onto a Roberts-penned decision that faulted the pre-clearance formula for being old and outdated, and planted the seeds for its demise.

This is where Roberts gave birth to a “fundamental principle of equal sovereignty” among states. The trouble with this principle is that it doesn’t exist. The cases he cited actually concern a very different principle, equal footing, which secured equality among newly admitted states. Roberts created it with an ellipsis that edited out the actual law.

The Voting Rights Act, Roberts wrote, “differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty.” And here he cited the very first challenge to the VRA, South Carolina v. Katzenbach, in which the court upheld its constitutionality. “The doctrine of the equality of States … does not bar … remedies for local evils which have subsequently appeared.”

Except the actual case upheld the VRA in the very sentence Roberts used to claim the opposite. How does he get away with turning up into down? He cut the clauses he didn’t like. Here’s the actual decision: “The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms upon which states are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.”

Four years later in Shelby County v. Holder, when Roberts and the court eviscerated pre-clearance in a 5-4 party line decision, he would cite his own made-up dicta as law. This was a long way from balls and strikes.

The nation’s confidence in the Supreme Court has now hit historic lows, as Americans rightly see the nine justices as partisan proxies. What many don’t suspect is that the justices make this up as they go along. That the conservative supermajority can get away with this because they carry lifetime appointments, accountable to no one.

Roberts has been praised and portrayed as a model of modest judicial restraint. His actual legacy is far more powerfully grounded in Northwest Austin, Shelby County, and other cases about voting rights, campaign finance, and the basic operations of our democracy.

And in each of those cases — decisions that transformed campaign finance, voting rights, the regulatory state, reproductive rights, and more — the Roberts court has sided with its political team and partisan benefactors time after time.

We cannot understand our withered politics without reckoning with the right’s long-term project to both capture the Supreme Court and seal off the ability of voters to take back power through increasingly extreme gerrymanders. The ultimate test of what might be called the antidemocratic judiciary is the simple survival of a republic where the majority of Americans have the ability to vote out leaders they no longer wish to have in high office.

David Daley lives in Haydenville. His new book, a national bestseller, is “Antidemocratic: Inside the Right’s 50-Year Plot to Control American Elections.” He will discuss the book at Odyssey Books in South Hadley on Tuesday, Sept. 17 at 7 p.m.